Bates, Frank --- "Is the Tide Truly Turning? - Gays, Lesbians, Adoption and Custody" [1996] MurdochUeJlLaw 27; (1996) 3(3) Murdoch University Electronic Journal of Law

Is the Tide Truly Turning? - Gays, Lesbians, Adoption and Custody

Author: Professor Frank Bates Professor of Law, University of Newcastle, NSW Issue: Volume 3, Number 3 (September 1996) Click on the image at left for a 1.3 MB QuickTime video clip of Frank Bates speaking. You will be prompted to install the necessary QuickTime plugins for Netscape if they are not currently installed on your machine.

I

1. As developments in the United States tend to predate those in Australia, it is always worthwhile to monitor those in that jurisdiction (or multiplicity of jurisdiction), the more so as Australia has been continually more prone to borrow from the United States, no less in family law matters than elsewhere.[1] The purpose of this paper is to examine some recent developments regarding gay couples and their family relationships in the United States and to attempt to comment on their relevance to the existing and future Australian situation.

2. A useful starting point is provided by the decision of the New York Court of Appeals in In re Jacob and Dana.[2] The issue which arose in that case was whether the unmarried partner of a child s biological mother, whether heterosexual or homosexual, who is bringing up the child together with the biological parent could become the child's second parent by means of adoption. Jacob and Dana involved two adoption applications - one by a homosexual couple and the other by an unmarried heterosexual couple - and, at the outset, Kaye C.J., who delivered the judgment of the majority, emphatically stated [3] that the legislation [4], ...must be applied in harmony with the humanitarian principle that adoption is a means of securing the best possible home for a child. Our primary loyalty must be to the statute's legislative purpose - the child's best interests. This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as the child's parents to become the child's legal parents. Kaye C.J. then referred to certain legal advantages [5] which would result from such an adoption. More tellingly, though, Kaye C.J. emphasised that it still more important was, ... the emotional security of knowing that in the event of the biological parent's death or disability, the other parent will have presumptive custody, and the children s relationship with their parents, siblings and other relatives will continue should the parents separate. From the children's perspective, the judge thought, permitting the adoptions would provide the children to achieve a permanency with both parent figures and avoid disruptive visitation (contact) battles.[6]

3. A further matter which influenced Kaye C.J.'s judgment was the adoption statute itself which represented, in the judge's ipsissima verba, ...a complex and not entirely reconcilable patchwork . It had originally been passed in 1873 and had last been consolidated in 1935 and, in consequence, could not be regarded as a methodological and meticulous expression of legislative intent. At the same time, s110 provided that, an adult unmarried person or an adult husband and his adult wife together may adopt another person. Kaye C.J. was of the view that this provision permitted, both applicants, as adult unmarried persons had standing to adopt.

4. The argument used by Kaye C.J. to counter the obvious submission that the legislation did not permit unmarried couples of whatever gender to adopt, Kaye C.J. stated that the word together was only applicable to married persons. It, thus, did not preclude an unmarried person in a relationship with another unmarried person from adopting a child. The provision was aimed, the Chief Justice thought, at ensuring that one formally married spouse cannot adopt a child without the other spouse's knowledge or over the other spouse's objection. As a matter of fact, each of the biological mothers was both aware of the proceedings and consented to them. Thus, Kaye C.J. stated, a reading of the provision as permitting the application was, therefore, ...consistent with the words of the statute as well as the spirit behind the [enactment]: encouraging the adoption of as many children as possible regardless of the sexual orientation or marital status of the individuals seeking to adopt them.

5. There was, though, a further statutory obstacle to the applications : in s117(1)(a) of the legislation it was provided that, After the making of an order of adoption the natural parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession... As Kaye C.J. pointed out, [7] a literal interpretation of that section, on its own, would, of necessity, preclude adoption of the kind sought in Jacob and Dana. However, Kaye C.J. was of the view that that view could not be justified either in the context of the Act at large [8] or on policy grounds. As regards the Act itself, it was elsewhere specified [9] that the termination of parental rights was not terminated that the termination of parental rights was not warranted in the case of adoption by the parent's spouse.

6. It followed that the legislature had created, ...a statutory puzzle not susceptible of ready resolution. Given that the provisions were susceptible of two interpretations, Kaye C.J. took the view, properly in this writer's opinion, that, ...a construction of the section which would deny children like Jacob and Dana the opportunity of having their two de facto parents become their legal parents based solely on their biological mother's sexual orientation or marital status, would not only be unjust under the circumstances, but might also raise constitutional concerns in the light of the adoption statute s historically consistent purpose - the best interests of the child. Kaye C.J.'s approach to a rather unorganised statutory provision seems to me to be wholly commendable in the sense, at the very least, that the longer term welfare of children has been taken into proper account. It is also heartening that, where a bifurcation in interpretation was possible, the approach which was perceived as being beneficial to the children, rather than reflecting pre-Cambrian [10] motions of morality, was taken.

7. Yet, inevitably perhaps, there was a dissent; Bellacosa, Simons and Titone JJ. regarded [11] the language of the provision to be sufficient, of itself, to disqualify the adoptions. More conceptually, though, these judges considered that the effect of the view expressed by Kaye C.J. and those who supported it might, in theory, mean that any number of people who chose to live together, even though they might not cohabit, could adopt a child. With respect, that appears to be a most peculiar statement; cohabitation is, in one sense at least, synonymous with living together. In Australian social security law, the definition (or vague description) of a family relationship includes [12] any sexual relationship between the relevant people. Though it might not be appropriate to ingraft an Australian statutory provision on to United States case law, the minority seem to be implying that, by drawing the distinction which they did, they required there be a sexual relationship between the parties before they become eligible to adopt. The paradox inherit in that view was further sharpened by the minority's comment that State legislation did not recognise common-law, gay or lesbian marriage. It is truly hard to appreciate the processes by which the minority arrived at their opinion, except by ex post facto rationalisation of a dislike of adoptions by gay/lesbian or unformalised couples.

8. Re Jacob and Dana seems very much to be in the mainstream of United States judicial thought; shortly after it was decided, Pressler J. of the New Jersey Superior Court Appellate Division, in Re Adoption by H.N.R.,[13] made a similar determination. The parties in that case (Hannah and Mary) had lived together in a committed relationship for some fourteen years, both were in professional employment [14] and owned a house as joint tenants in a prosperous suburb. Most of their other assets were in joint ownership as well. Even from the commencement of their relationship, it appeared that the parties had seriously considered the possibility of their having children. Hannah, the older partner, had sought to conceive by anonymous donor artificial insemination, but was unsuccessful. However, Mary was successful in an attempt to conceive by the same method and, during her pregnancy, they agreed that, as Hannah's income was higher, she would continue to work to support the family. At the same time, Hannah was closely involved in her partner's pregnancy which ultimately resulted in the birth of twins, a boy and a girl. Since the twins were born prematurely, they remained in the hospital for some seven weeks after their birth and, during that period, both parties took turns in attending the children in hospital.

9. From the time the twins came home, both parties were finally involved in their care and Pressler J. found [15] that the children who, at the time of the hearing, were aged three, were equally bonded to both women. Decisions regarding their upbringing were jointly made by both women and, in addition, the extended families of both women were much involved in the lives of the children. Further, the parties had given careful consideration to the future : a college fund had been set aside for the children, they had provided for one another and the children by will and had discussed the possibility of their separation - though both regarded that as being not in the least likely. Yet in any such event, they had agreed that Mary would remain the primary custodian whilst Hannah would have liberal visitation rights as well as a continuing support obligation.

10. As might have been expected, both parties were in favour of Hannah's adoption of the twins, though neither regarded any favourable judgment as likely to make any difference to the way in which the family lived. A major reason why they sought the order was to confer dependency benefits on the twins, [16] and, more generally, to give Hannah a formal declaration of parental right and to assure the continuity of any relevant custodial and financial rights and responsibilities which characterised the relationship. The New Jersey Children's Aid and Adoption Society was strongly supportive of the applications.

11. The major reason which I have outlined the facts of the case in such detail is to emphasise the obvious commitment which both parties had to each other and to the children. [17] Given that instantly apparent commitment, it is, perhaps, surprising to discover that the trial judge did not permit the adoption on the basis that such adoptions were not permitted by the New Jersey adoption legislation. In reversing that decision, Pressler J. took the view that such an interpretation was, ...erroneously over-restrictive. In reaching that conclusion, the judge was assisted by a provision [18] which requires that, ...the act be liberally construed as to the end that the best interests of children be promoted.

12. That statement, Pressler J. emphasised, was the touchstone for the Court. In addition, unlike Jacob and Dana, [19] the Court was not handicapped by a more than somewhat unorganised statute - the New Jersey legislation was silent in respect of both joint adoptions by unmarried persons or adoption by an unmarried cohabitant of her or his partner's child with the partner's consent. It followed, then, that the issue which the Court was required to decide was whether the legislation should be read as permitting such adoptions if they would serve the interests of the children.

13. The legislation went on, first, to permit[20] any person to institute an action for adoption provided that, if that person is named, the action is brought with jointly or with the consent of he applicant's spouse. It is, thus, apparent that, in the State of New Jersey at any rate, an unmarried person, whether heterosexual or homosexual, would qualify. Second, it is also provided,[21] in relation to the effects of the adoption, that its institution absolutely terminates the parental rights of the natural parent unless the plaintiff is, . . . a stepfather or stepmother of the adopted child and the adoption is consummated with the consent and approval of the mother or father respectively. The earlier provision, of course, presents no real difficulty but it will be readily apparent that the latter might in the sense that there was no father administratively involved in the case, even though mentioned in the legislation.

14. Despite the finding of the trial judge,[22] Pressler J.'s view was that the stepparent exception ought not to be read literally where, . . . to do so would defeat the best interests of he children and would produce a wholly absurd and untenable result. The judge also noted that the decision was consistent with the view which had been taken by courts in other United States jurisdictions[23] where there was no statutory prohibition on people who were homosexual adopting children.[24]

15. These two recent adoption cases must be seen as a heartening development: although it might be argued that there are policy and equity questions which ought to override matters of, in one case, intricate statutory interpretation, but it is certainly clear that H. and R is founded on policy. At the same time, in Jacob and Dana, a massively and incoherently amended statute was dextrously and suitably evaded. Given these United States pointers, and the circumstances in which they arose, one might think that a significant torch might have been lit, but, from another, smaller and less diverse jurisdiction, an extinguisher seems to have been as well primed. In Scotland, Lord Gill has decided[25] that a male homosexual couple could not adopt a five year old male child. In this instance, a 32 year old male nurse had applied to adopt the boy, who had severe physical abnormalities and learning difficulties. The petitioner and his slightly older partner[26] had been looking after the boy for some eighteen months. It also appeared that the boy's mother, who was living in England and not married to his father, appeared not to wish any further contact with the child. Lord Gill stated that the child, who had been in care since he was two months old, received a high standard of physical care. In the judge s own words, The unusual nature of this proposal makes it particularly important that the court should consider whether the child's emotional and psychological needs will be adequately met at each stage of his childhood.

16. As regards that aspect, it appeared that a report from the social work department of the relevant regional council had stated that the couple saw themselves as joint carers of the child. Likewise, an advocate appointed by the Court as Curator[27] to the child told the Court that he was, . . . of the opinion . . . that the fact of the petitioner and his partner maintaining a homosexual relationship forms no bar to the desirability of the adoption.

17. In the light of these comments, it had been argued that, since both witnesses had supported the application, the petition should be treated as being unopposed and, hence, ought to be granted. Lord Gill refused to accept that contention on the basis that the curator had not given sufficient detail to reinforce the opinion which he had expressed. In addition, the judge decided that the case involved a fundamental principle as to whether a court should sanction an adoption in such circumstances and he also expressed the view that there was no prior Scots authority on the issue. On those grounds, Lord Gill decided that the adoption could not be sanctioned.

18. Even allowing for the limited nature of the report available to me, I can only express the view that Lord Gill's decision is deeply disappointing. When the child had been placed with the men a social work report had stated that the couple had, . . . close and loving relationships with the child . . and that, . . . he trusts and feels comfortable with them. It also appeared that the couple had talked about the possibility of adoption from the beginning of their relationship and had first approached the social work department as early as 1988 and, in consequence, social work managers had agreed to look at their application despite its frankly unusual and possibly contentious nature.

19. On one level, this decision is unfortunate in that it demonstrates the failure of jurisdictions to take account of available developments in another jurisdiction.[28] At the same time, note should be taken of the socio-religious context in which Lord Gill was coterminously involved. On the same page of the same newspaper which carried the report of Lord Gill's decision, another report[29] described a Church of Scotland report on childlessness[30] which reaffirmed the Church's opposition to surrogacy and, for the purposes of this paper, artificial insemination for lesbian couples. The report does go so far as to state that infertility treatment may be appropriate for unmarried couples who are in, . . . faithful, stable, lasting relationships. But it was emphatic in its view that assisted reproduction ought not to be used to people in same-sex relationships.[31] That report was, however, condemned by a leader of the Scots gay community[32] who regarded it as being out of step with reality and who commented that the magazine of which he was editor received, . . . personal ads about three times a year from lesbians in long-term relationships looking for gay men to father a child.

20. The adoption cases seem to tell us that the tide may very well be on the turn in some jurisdictions, but the process is far from uniform. Insofar as a global conclusion may be drawn, the large and heterogenous culture of the United States seems, as represented by legal decision, to be more aware of the benefits that might accrue to children by recognising adoptions of the kind involved than the smaller, more homogenous Scotland. The Scots position is the more unfortunate when one considers that it was in that jurisdiction where strict adoption requirements were waived, as early as 1959, to permit a single person to adopt.[33]

    II

21. As might properly be expected, the United States cases on custody and access (or as they are now known in Australia, agreements or orders about the person or persons with whom a child is to live[34] or contact between a child and any other person or persons[35]) are rather more of a mixture. From the point of view of this paper, perhaps one of the high points is the decision of Staton J. of the New York Family Court for Kings County in In re Astonn H.[36] That case involved a dispute between a deceased woman's lesbian partner and her estranged husband regarding the custody of a four years old child born to the deceased during the women's relationship.[37] In holding that the partner was the appropriate person to be awarded custody, the judge considered a number of specific factors.

22. The first of these was that neither party to the litigation had a genetic relationship to the child; that, though, it was considered did not bar either party from making an application. In Staton J.'s own words, The Court is presented with an extraordinary combination of circumstances in determining who would be the best caregiver for the child. That is, indeed, a very fair comment in that, in addition to the issue of the mother's lesbian relationship, it had been argued that custody should be awarded to the mother of the mother's former husband because they were both African-Americans and because the child born during the subsistence of the marriage also lived with that person. The judge instantly rejected[38] both of the latter submissions, which, it was considered were not justified in law.

23. As regards the lesbian relationship, the judge commented[39] that the applicant's relationship with the child's mother was a factor which neither barred nor supported her case. It was only if a sexual lifestyle could be shown to be detrimental to the child's well being that it would be considered.[40] Likewise, the familial relationships involved on the other side were not determinative of the issue. The Court, Staton J. said, must look at the home environment, the quality of parenting and the child's emotional, medical and intellectual needs.

24. The question then arose as to what was determinative of the issue. There was never, the judge found, any allegation that he applicant had acted in any manner which was detrimental to the child; indeed, when she had been informed of the child's medical condition, it appeared that she had removed carpeting from her home, had stopped smoking and had made every effort to remove any conditions which were detrimental to his health. Her behaviour was in contradiction to that of the husband s mother. On the facts, Staton J. also found that the was no basis in fact for the argument that it was desirable for the child to grow up with his half sister.

25. Although it might initially appear that the ultimate decision was based on essentially trivial issues (such as the matter of the removal of carpets), Staton J. did find that the only person in the child's life who had always been a stable, loving presence had been the mother's partner. Evidence had also been given by the deceased's mother that it had always been the couple's intention to be the childs co-parents.

26. In re Astonn H is a useful decision in that it appears genuinely to reflect a recognition of the relationship between the child and the lesbian applicant, even though, coterminously, it might also reflect on the parenting skills of the alternative.

27. At the same time, Astonn H must be considered in context, both in the general legal context and in the context of the relationships involved. An interesting instance is provided by the decision of the Wyoming Supreme Court in Hertzer v Hertzer[41] which involved a dispute regarding a lesbian mother's visitation rights to her two adopted children. The mother, subject to visitation rights had readily acquiesced in transferring custody rights to the husband when it was finally discovered that she was a lesbian.[42] Problems began to arise when the husband remarried (having availed himself of a match-making service). What then happened is best described in the judgment of the majority, which was delivered by Taylor J.[43] Insisting that she is a firm believer in Biblical principles [the second wife] manifested a strong desire to inculcate the children with those values. She convinced [her husband] that such a program should be persued with a vengeance, eventually to include close questioning of the children about he details of [their mother s] lifestyle, conducted amidst unrelenting exhortations against the perceived sins of [their mother] .

28. Shocking as that might appear to be, it cannot wholly be said that all was totally well with the mother: in the meantime, she had formed an ongoing relationship and had removed from Wyoming to Ohio. She further insisted[44] on fully informing the children of her lifestyle which involved the children; on a visit to Ohio, inter alia taking part in a gay and lesbian rights parade and participating in a commitment ceremony involving their mother and her partner. A major consequence, it appeared from Taylor J.'s judgment, was that on their returning to Wyoming, . . . the children brought home an astonishing grasp of anatomical terminology, their articulation of which only sought to deepen and reinforce [husband and wife s] leaden fears concerning activities which were taking place in [the mother s] new home. Accordingly, the father sought, and obtained, stringent modifications of the mother s visitation privileges. She appealed unsuccessfully to the Supreme Court.

29. In reaching that decision, Taylor J. stated[45] that the court was not involving itself in making value judgments regarding the relative lifestyles of the parties. At the same time, the judge thought, that the court was only compelled to make some kind of adjudication because the children's lifestyle might have substantially changed to their detriment. One finding made at first instance, of which the majority in the Supreme Court were critical, was that the children had been eroticised whilst with their mother and the decision to restrict the mother's visitation was predicated on that. The majority refused, . . .to elevate eroticisation from its dubious rank as a solipsistic contrivance.

30. That apart, Taylor J. noted that it was clear that both[46] parties had deliberately seized the fact of their divorce to embrace wholly divergent lifestyles to the detriment of their children. A divergence which was so unusual that it gave rise to a significant change in circumstances and that change in circumstances Taylor J. commented, . . . was clearly the product of zealous machinations by both contestants. In this ignoble context, it is particularly foolhardy to believe that modification of custody and visitation is appropriate to punish or reward either equally culpable contestant. The only proper objective is a modification that will serve the best interests of the children by stabilizing an environment made chaotic by thoughtlessly self-absorbed parents. The contest had the result seeking to reduce the children to mere proselytes of conflicting lifestyles. Hertzer is not an easy case to evaluate; the more so, as at the conclusion of Taylor J.'s judgment, it was emphasised that the decision had not been based on the Biblical and family values espoused by the father and his second wife but in spite of [47] them. At large, the contest between the parents was such as might have damaged the children irreparably. There was also a dissent by Golden C.J. and Guthrie J. which was especially critical of the role played by the father and his second wife on the basis that they had worked long and hard at alienating the children from their mother. Indeed, these judges went so far as to say that their conduct was such that they ought to have been held in contempt in respect of their conduct. However, they said, the ultimate adjudication was such that they had been rewarded for, despite the spin placed on it by the majority, their outrageous behaviour.[48]

31. At risk of displaying my own prejudices, I cannot but disagree with the majority judgment in Hertzler, which I find to be riddled with paradoxes. Thus, for instance, Taylor J. referred to the parties having proselytised in such a way that the children's souls were, . . . a grand prize in a strange and destructive marital contest. [49] One might be forgiven for thinking that the issue of the children s souls, regardless of whether such entities exist, was relevant only to the father and his wife. In addition, Taylor J. noted[50] that one experience which the children had had when visiting their mother in Ohio was that they had snuggled with their mother and her partner in bed. This does not suggest instantly to me that sexual behaviour was being taught and learned, but that the two adults and the two children were in a happy and bonded relationship. Taylor J.'s description of the father's household[51] does not suggest that such was the case there.

32. Hertzler may be factually and ideologically compared with the decision of the Indiana Court of Appeals, Fourth District, in Teegarden v Teegarden.[52] The Teegarden case raises an issue which has been discussed in Australian legal literature - that of imposing conditions where custody or residence has been awarded to a gay or lesbian parent.[53] In an Australian context, Goodman has strongly queried[54] the utility of imposing conditions on three grounds: first, because they are not imposed in all cases, they may prove discriminatory. Second, such undertakings are frequently incapable of enforcement and, are likely to lead to further litigation, in that they may provide a potential base for further claims by the non-custodial parent.

33. The dispute in the Teegarden case was between the mother of the two children, a lesbian, and the second wife of the deceased father. The two conditions which the court at first instance imposed were, first, that the mother not cohabit with women with whom she was having a sexual relationship; second, that she not engage in homosexual activity in the presence of the children; third, that she arrange for counselling for herself and the children to assist them in making the transition into their new home.[55] The mother argued, successfully, that, in disputes between parents and third parties, the court had no right to set ad hoc conditions which undermined a natural parent's right to custody as set out in State legislation.[56]

34. In reversing the order imposing the conditions, the court distinguished two earlier decisions in Indiana[57] which appeared to be authority for the proposition that conditions could be imposed if such conditions served the best interests of the child. In the second case,[58] there had been evidence that he emotional development of the child might be injuriously affected by the presence of his father's male lover during visitation periods. This was exactly the opposite of what had happened in Teegarden : the trial court, Ratliff J. noted,[59] had specifically found that the widow had failed to prove that the mother's homosexuality rendered her an unfit mother and it had been decided previously in Indiana[60] that homosexuality per se did not disqualify the homosexual parent from custody, a view which was consonant with that taken in other jurisdictions.[61] In addition, Ratliff J. commented, that the trial court had found as a fact that the mother's homosexuality did not have any traumatic effect on the children even though they had seen their mother kissing and embracing her partner.[62] Ratliff J., in that context, stated that had the evidence revealed that had the evidence revealed that the mother had flagrantly engaged in untoward sexual behaviour in the presence of the children, then the court at first instance might have been justified in awarding custody to the widow. However, there was no evidence to support such a conclusion.

35. Once again, Teegarden would appear to be a decision to be welcomed; although reference was made to the statutory provisions, Ratliff J.'s judgment does not appear to be based on statutory interpretation itself[63] but on an appreciation of the facts of the case and notional policy issues.

36. The factual issue arose in rather more complex form in the decision of the Maryland Court for Special Appeals in North v North.[64] There, the parties had married in 1982, the husband being a Baptist Minister. There were three daughters of the marriage. The parties separated in 1991 following a revelation by the husband that he was HIV positive. At the time, he claimed that he had contracted the virus from an extramarital heterosexual affair. A further fact, which must have been doubly disturbing to the wife, was that he had continued to have unprotected sexual relations with her during the period between the time he discovered that he had the condition and the time he disclosed the fact to her. The husband then left the family home to live with a male family friend.

37. In 1992, the husband told the wife that, in fact, he had contracted the virus from homosexual contact, had had his first such contact in 1979 and had continued the activities throughout the marriage. In addition, he also told the wife that the family friend was also HIV positive[65] and that they planned to go through some form of marriage ceremony. Further, he told the wife that he intended to inform the children of his lifestyle and expose them to it. At that point, the wife terminated all visitation between the husband and the children and began divorce proceedings.

38. At first instance, custody of the children was awarded to the wife and the husband unsupervised visitation on weekly basis.[66] However, and this was the central issue in the appeal, he was not permitted, as he had requested, unspecified overnight, weekend and extended summer visitation. It was against that decision that he appealed to the Court of Special Appeals which, by a majority, upheld the appeal.

39. In delivering the judgment of the majority, Wilner C.J., first emphasised[67] that though it was not necessary to decide the issue,[68] in case the issue were to re-emerge, he took the view that visitation with an HIV positive non-custodial parent could not be restricted on that basis alone, unless the court finds that without any such restriction the child's physical health may be endangered or emotional development might be impaired. It appeared from Wilner CJ.'s judgment that the major issues to which the wife had testified at the trial were possible harmful psychological effects to the children's being brought up in a homosexual household and serious health risks to which they might be exposed. But, at the same time, it was also clear that she had felt betrayed because of his husband's homosexual lifestyle and, more specifically, because of his continuing to have sexual relations with her when he was HIV positive. Furthermore, she did not trust her husband to protect from any deleterious consequences of his lifestyle because of his self-absorbed personality.

40. Conversely, the husband had testified to the effect that he and his partner would not display their sexuality in the presence of the girls and were taking every precaution to avoid any risk of the being exposed to the virus. He had also stated that he and his partner would occupy separate bedrooms when the children were visiting. The court at first instance refused to believe him,[69] noting his sexual relations with his wife and his continuing to serve communion at his church even though his Deacon had requested him to stop doing so because of his HIV positive condition. A major problem, the Chief Justice found, with the decision at first instance was the lack of specificity in the orders which it had made: thus, on the one hand, the order expressly contained a provision that he husband not expose the children to, . . . events or functions which espousing his alternative lifestyle or overtly display or discuss his lifestyle with the children. On the other, the trial court had expressly found that it could not trust the husband to abide by such restrictions. That rather obvious inconsistency, Wilner C.J. thought,[70] would probably have been harmless but for the court's resting its decision not to allow overnight visitation on the credibility finding, ignoring completely the effect of its own injunction. Comment has already been made on the validity or otherwise of conditions in such orders.[71] Put another way, there was no evidence that the husband would be more likely to breach the condition in evenings rather than afternoons! Accordingly, the case was remanded for reconsideration by the trial court.

41. As noted earlier, there were three dissenting judgments: first Bishop and Fischer JJ. took the view that,[72] although the was no evidence that the husband's homosexuality, considered alone, would cause harm to the children or preclude overnight or extended visitation, other factors justified the decision at first instance. There was, the judges found, . . .evidence in the record that [the husband s] proven poor judgment and reckless behaviour could result in harm to his children if the visitation were extended for a significant period of time The record showed, they continued, a nexus between his deceitfulness and recklessness and the potential for harm to the children. The present writer has a problem with these judges formulation: although they speak of harm, there is nowhere any attempt to describe what kind of harm would be likely to befall the children. Given the condition in the order, would the harm result from its breach? At the same time though, they had disavowed the husband s homosexuality as a disqualifying factor. Yet another obvious inconsistency of the kind which had been noted by Wilner C.J.[73] in respect of the trial court's initial adjudication.

42. Cathell J., however, was altogether more specific in regard to the husband's homosexuality; reference was made[74] to his particular homosexual lifestyle and his long-standing pattern of deceit and untrustworthiness - especially his failure to shield his wife from any possible risk of HIV infection - he could not be trusted to shield the children from conduct perceived to be detrimental to their best interests. The same criticisms are applicable to Cathell J.'s judgment as are to that of Bishop and Fischer JJ. in that, in the Chief Justice's words, it lacks specificity. Last, Murphy J. took the view[75] that there was nothing in the original determination which did to support the conclusion that the husband s visitation ought not at all times to be supervised.[76]

43. It might, of course, be possible to interpret the North decision as having nothing to do with his homosexuality; in other words, to regard the adjudication at first instance as being entirely predicated on the husband's alleged irresponsibility. However, the condition contained in the initial order, taken together with the expressed views of the minority, do seem to suggest that, inherent in a homosexual lifestyle, is an element of proselytisation.

    III

44. In Australian law, the matter of proselytisation was taken up by Baker J. in the leading case of In the Marriage of L,[77]where custody of the four children of the marriage was given to the wife who was living in a homosexual relationship. As in the North case, it might have been possible for the judge to have dealt with the case solely on the basis of the quality of the care which each parent was able to provide,[78] but, instead he set out eight factors which a court should take into account in such cases.[79] The judge found[80] that there was nothing in the evidence that either the wife or her partner would encourage the children to become homosexual and would, at all times, adopt a balanced approach to sex education. In that context, one, perhaps, disturbing feature of the L decision was Baker J.'s description[81] of the women: he said that, Neither the wife nor Miss Y are obvious homosexuals. Both dress in a pleasant and appropriate fashion and neither gave me the impression that they flaunted their homosexual relationship or went out of their way to communicate to the world at large that they were homosexuals living in a permanent homosexual relationship. In particular, the reference to the dress of the women seems equivocal to say the least. In other words, was their behaviour such as to approximate to what might normally be expected of a heterosexual, middle class relationship?

45. With the facts in L, might properly be compared the decision of Murray J. in In the Marriage of Spry[82] where custody was awarded to the father where the mother was living in a lesbian relationship. Although the judge was at pains to note[83] that lesbianism of itself did not disqualify a mother from custody, it was a factor which could not be ignored and had to be taken into account with other factors which comprised the entire situation. It is clear from the judgment[84] that the matter could have been disposed of in the same way by comparing the accommodation which was available to the competing parties. Yet there, inevitably, is more: Murray J. commented[85] that the mother, . . . has an intensity of feeling that manifests itself in a religious commitment as well as in her devotion to her children and her lover. I more than suspect that she has found as well, a deep and fulfilling commitment to the homosexual lifestyle through Mrs Lightburn, and I find that her attitude in this sphere has overtones of a crusading nature. The judge continued by saying that the extended family which the children would experience would be more likely to be homosexual than heterosexual and she also noted that the Church attended by the women was largely comprised of homosexual people. Again, one wonders whether the couples more aggressively lesbian lifestyle told against them, whilst that more immediately approximating to a suburban situation would have been found to be less threatening.

46. It may also be that factors which are extraneous to the actual sexual relationship of a couple seeking custody are taken into account. Thus, one issue which has recently achieved some judicial and legislative prominence is that of domestic violence. In s.68F(2)(g) of the Family Law Act 1975, as amended in 1995, it is provided that, in determining the best interest of a child, the court must consider, . . . the need to protect the child from physical or psychological harm cause, or that may be caused, by: (i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour: or (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person . . . The section then goes on to require that the Court is also required to take into account any family violence involving the child or a member of the child's family[86] and any family violence orders that applies to the child or a member of the child's family.[87] There are also provisions which require party to relevant proceedings to inform the Court about any family violence order of which they are aware[88] and to require courts to consider the risks of family violence in determining what parenting order to make.[89] More generally, the 1995 amendments saw an addition to s 43 of the Family Law Act; this section sets out the principles which a court exercising jurisdiction under the Act must apply.[90] A new s 43(a) has been added which requires courts to take account of the, . . . need to ensure safety from family violence . . . [91]

47. These provisions are of relevance to the present discussion for two reasons which will become apparent. The first is the decision of Asche J. in In the Marriage of Kitchener[92] where a welfare report had been sought in respect of matters which had ben disclosed in earlier proceedings. In those earlier proceedings, the wife had been granted custody of the relevant children until further orders and had undertaken that she would take all reasonable steps to ensure that one C.L., with whom she had been living in a lesbian relationship, move out of her present residence within a specified period and, thereafter, not be brought into contact with the children. Ms C.L. did, in fact, move out but later returned and assaulted the wife and the two daughters of the marriage. Asche J. held the mother in contempt but, nevertheless, her latter expressed the view[93] that the mother was the preferred guardian but no order should be made in her favour until she had obtained suitable accommodation. On one level, it is clear that at the time Kitchener was decided, there was not the emphasis on the dangers of family violence now to be found in the Act or as represented by decisions such as In the Marriage of J.G. and B.G.[94] Nonetheless, Kitchener does seem to be a strong pointer: the mother was regarded as the preferred guardian despite her violent relationship (it was not clear whether or not it was continuing or, if so, in what form) and the contempt finding.[95] In s.60D(1) of the Family Law Act, as amended, family violence is defined as meaning, . . . conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family to fear for, or to be apprehensive about, his or her personal well being or safety Might Kitchener have been decided in the same way today?

48. It follows from Kitchener that courts are sometimes forced to investigate the quality of particular relationships - an issue which arose in an acute form in In the Marriage of Shepherd.[96] In that case, both parties sought custody of their nine years old daughter. Both had lived in homosexual relationships since their separation in 1974; the husband continued so to do whereas the wife had ceased her relationship in 1977, when she found Christianity. She now disapproved of her husband s lifestyle and was concerned that it was having an adverse effect on the child. It also appeared that both competing parties had cared equally for the child, though the Family Report had concluded that the wife had few, if any, friends outside her religious group. Further, she did not display much spontaneity or understanding of the child, whereas in Ross-Jones J's own words[97] the evidence, . . . clearly establishes that the husband's relationship supports him in his role of caring for [the child] adequately; secondly that the husband's relationship is as stable as any such relationship could be. Once more, I have the same concern which I have earlier expressed regarding the views of Baker J. in In the Marriage of L[98]: there ought to be no reason why a relationship such as that in which the husband was involved in Shepherd ought to be regarded as potentially any the less stable as other relationships of whatsoever kind. That view, indeed, is reinforced by the ultimate adjudication that the husband ought to have custody of the child[99] as well as by a comment that the judge would not seek any undertakings from either party.[100]

49. The relationships involved in Shepherd were, in essence, between the parties themselves; however, other relationships may not be irrelevant. In that context, the decision of Hannon J. of the Family Court of Australia in In the Marriage of Doyle[101] ought to be noted. A detailed analysis is not necessary as that has been attempted elsewhere;[102] however, it is worth reiterating that Hannon J. specifically applied the eight tests which had been enunciated in L.[103] In addition though, on the issue of relationships, Hannon J. laid considerable emphasis on the role played by the wife s de facto husband[104] and it is, thus, legitimate to ask whether, had this individual been less egregious, whether the decision would have been the same.

    IV

50. Is it possible, to draw any generally constructive conclusions from this admixture of case law from two jurisdictions? It is certainly true to say that that United States case law does not seem to have had direct impact on Australian law, which is, perhaps rather unfortunate. The reason why I make this comment is that United States courts, in recent decisions, appear to have taken a more positive view of the gay and lesbian relationships which were involved in the various decisions - that was especially true of the Jacob and Dana case.[105] But even in that case, the sceptic might be in a position to regard the decision as merely being the product of an exercise in statutory interpretation, rather than a matter of policy. I have elected to regard the case in the latter sense, though a total deconstruction of the majority judgment (and the other) in the case is really impossible. In the Australian context, the issue of adoptions which were in issue in Jacob and Dana will ultimately have squarely to be faced and it is beyond the scope of this paper to canvass all of the policy issues.[106]

51. If one is left with an impression that gay and lesbian people are awarded rights, privileges or responsibilities in respect of children faute de mieux, especially in Australia, one might be forgiven. There are societal reasons why courts have sought to give that impression[107] and it would be struthious of us to suggest that those pressures do not exist. Those same pressures might be the same as seem, on an impressionistic basis, to require extremely detailed judicial reasons for making orders in favour of people who are gay or lesbian. (In other words, the more detailed the reasons, the less likelihood of being traduced by Murdoch tabloids!) It is the responsibility of judicial and administrative officers, academics and all of us interested in societal developments to ensure that they are resisted. There are obvious and immediate reasons why that should be and a quotation from an adoption case[108] with which I concluded an earlier paper[109] will suffice: This court finds where a child who has two adults dedicated to his welfare secure in their loving partnership, and determined to nurse him to the very best of their considerable abilities. There is no reason in law, logic or social philosophy to obstruct such a favourable situation. That is surely a good policy start and a base for a community educative function! That may ultimately turn the tide. . .

Notes

[1] See, F. Bates, Child Law and the Homosexual Partner - Recent Developments in the United States (1992) 1 Aust. Gay and Lesbian L.J. 20 at 20-21.

[2] 22, F.L.Rtr 1003 (1995)

[3] Ibid at 1003.

[4] Dom Rel. L.(N.Y.) s 110.

[5] The areas noted by the judge were eligibility for social security and life insurance benefits, the right to sue for the wrongful death of a parent, the right to inherit under rules of intestacy and eligibility for coverage under parents health insurance policies. In addition, he stated, granting a second-parent adoption further ensures that two adults are legally entitled to make medical decisions for the child in case of emergency and are under a legal obligation for the child's economic support.

[6] See, for example, Alison D v Virginia M 569 N.Y.S. 2d 586 (1991)

[7] 22 F.L.Rtr 1003 at 1004 (1995)

[8] Kaye C.J., ibid, considered that the provision was chiefly concerned with the resolution of property issues on the death of an adoptive parent or child.

[9] Dom. Rel. L (N.Y) s 117 (1)(d)

[10] I am grateful to my friend and colleague, Professor Warren Pengilley, for this graphic phrase.

[11] 22 F.L.Rtr 1003 at 1004 (1995)

[12] Social Security Act 1991 (Cth) s 4(3)(d)

[13] 22 F.L.R. tr 1028 (1995)

[14] Both were radiation therapists and the older (Hannah) was Director of Radiation Oncology in a hospital.

[15] 22 F.L.Rtr 1028 at 1029 (1995)

[16] Such as cover on Hannah's employer provided benefits on the children.

[17] It is also a pleasant narrative, and contrasts vividly with some appalling situations which seem to occur in heterosexual relationships. See generally, for example, F. Bates, Domestic Violence and Children - Some New Developments (1995)10 (5) Aust Family Lawyer 24.

[18] N.J.S.A. 9:3-37

[19] Above text at n 2ff.

[20] N.J.S.A. 9:3-43a.

[21] N.J.S.A. 9:3-50.

[22] Who appeared to have taken the view that the adoption petition could not be granted because it would have instantly terminated the natural mother's parental rights.

[23] See Adoption of B.L.V.B., 628 A.2d 1271, 19 FLR 1403 (Vt SupCt 1993); Adoption of Tammy, 619 N.E.2d 315, 19 FLR 1547 (Mass SupJudCt 1993); M.M.D. v In re K.M. and D.M., 653 N.E.2d 888, 21 FLR 1439 (IllAppCt 1995); In re S.M.Y. , 620 N.Y.S.2d 897, 21 FLR 1099 (FamCt 1994); Adoption of Caitlin, 622 N.Y.S.2d 835, 20 FLR 1184 (FamCt 1994); Adoption of Evan, 583 N.Y.S.2d 997, 18 FLR 1175 (SurrCt 1992).

[24] There are two United States jurisdictions which have such a prohibition: New Hampshire (see N.H.Rev.Stat.Ann. 170-B:4-B:6) and Florida (Fla.Stat.Ann. 63. 042(3)).

[25] The case, at the time of writing, has not formally been reported and the writer is, thus, reliant on The Weekly Telegraph (1996) No.251 at 7 as reported by Sandra Barwick. For a recent United States decision to the same effect, see In re Adoption of T.K.J. 22 F.L.Rtr 1379 (Col Ct. App, 1996)

[26] The partner was aged 35 years at the time.

[27] Approximately equivalent to the separate representative appointable under s.68L of the Family Law Act 1975 as amended in 1995. For comment on the role of curator in Scots law, see J.M. Thomson, Family Law in Scotland (2nd Ed, 1991) at 165.

[28] For comment, see F. Bates, Comparative Common Law: A Justification. (1982) 14 C.I.L.S.A. 259.

[29] Above n.25, as reported by Auslan Cramb.

[30] The paper, apparently, informs us that childlessness can be a doorway to a deeper relationship with God as the means of strengthening a marriage and finding fulfilment in other areas of life.

[31] Not to single people who seek to have children by asexual means.

[32] Dominic D Angelo, Editor of Gay Scotland. See above n.25 as reported by Auslan Cramb.

[33] See Re A.B [1959] C.L.Y.B. 1563. In that case, a police officer of excellent character, who had received a child with a view to adoption by his wife and himself, was allowed to adopt after the sudden death of his wife when the Court was satisfied that the applicant and his mother in law could provide a suitable home for the child.

[34] See Family Law Act 1975 ss. 63C(2)(a), 64B(2)(a).

[35] See Family Law Act 1975 ss. 63C(2)(b), 64B(2)(b).

[36] 22 F.L.Rtr 1029 at 1030 (1995).

[37] The child's biological father was unknown.

[38] 22 F.L.Rtr 1029 at 1030 (1995).

[39] Ibid at 1030.

[40] See Guinan v Guinan 477 N.Y.S. 2d 830 (1984).

[41] 22 F.L.Rtr 1136 at 1136 (1995).

[42] The original custody determination in favour of the mother had been made expressly conditional on her disavowal of lesbianism.

[43] 22 F.L.Rtr 1136 at 1137 (1995).

[44] As Taylor J. put it, ibid, with equally ill-conceived ardor . . .

[45] 22 F.L.Rtr 1136 at 1137 (1995).

[46] Taylor J.'s emphasis.

[47] Taylor J.'s emphasis.

[48] 22 F.L.Rtr 1136 at 1137 (1995).

[49] Ibid.

[50] Ibid at 1136.

[51] Above text at n.43.

[52] 21 F.L.Rtr. 1063 (1994).

[53] For an Australian case where conditions were imposed, see the decision in Campbell v Campbell [1974] 9 S.A.S.R. 25. Where Bright J. of the South Australian Supreme Court awarded custody to a mother living in a lesbian relationship on the conditions that the women did not sleep together overnight, that they did not engage in acts of a sexual nature in the presence of the children and that the children were to be seen annually ally by the child psychiatrist who had given expert evidence eon behalf of the mother. The decision caused considerable furore on both sides of the debate, though the present writer, given the time it was made, considers Campbell to have been a very courageous decision.

[54] E. Goodman, Homosexuality of a parent: A New Issue in Custody Disputes [1979] MonashULawRw 9; (1979) 5 Monash U.L.R 305 at 324.

[55] A not dissimilar formulation to that in the Campbell case.

[56] Ind. Code 29-3-3-3, 29-3-3-6.

[57] Marshall v Reeves 311 N.E. 2d 305 (IndSupCt 1974); Pennington v Pennington 596 N.E.2d 305 (IndCtApp 1992).

[58] The first was largely concerned with procedural matters.

[59] 21 F.L.Rtr 1063 at 1064 (1994).

[60] D.H. v J.H. 418 N.E.2d 286 (IndCtApp 1981).

[61] See, for example, Bottoms v Bottoms 444 S.E. 2d 276 (VaCt App 1994); Corkel v Corkel 509 N.E. 2d 983 (OhioCt App 1987).

[62] It would be most unlikely that children of heterosexual couples would, at some stage or another, see their parents kissing and embracing!

[63] The same might also be true in the case of heterosexual relationships. For a peculiar and, perhaps, irrelevant instance see D v D.H. and D [1968] W.A.R. 177. For comment, see H.A. Finlay and S. Gold, The Paramount Interest of the Child in Law and Psychiatry (1971) 45 A.L.J. 82.

[64] See above text at n.7.

[65] It appeared that both men were being treated for their HIV condition, but that neither had developed AIDS.

[66] From 11.00 am to 6.00 pm on alternate Saturdays and from 2.00 pm to 7.00 pm on alternate Sundays.

[67] 21 F.L.Rtr 1015 at 1015.

[68] The Chief Justice, ibid, commented that it did not appear that the trial court had actually based its decision on the husband's HIV status.

[69] As reported by Wilner C.J. the court found him to be not candid, not responsible and deceitful .

[70] 21 F.L.Rtr 1015 at 1016 (1993).

[71] Above text at n.54.

[72] 21 F.L.Rtr 1015 at 1016 (1993).

[73] Above text at n.70.

[74] 21 F.L.Rtr 1015 at 1016 (1993).

[75] Ibid.

[76] In the Australian context, it should be said that the Full Court of the Family Court has set its face against the use of supervised access: see In the Marriage of B [1993] FamCA 143; (1993) F.L.C. 92-357 cf K v B [1994] FamCA 171; (1994) F.L.C. 92-478. For comment on these cases see F.Bates Access Where Allegations of Sexual Abuse are made: who are we Protecting and From What? (1994) 13 U. Tasmania L.R. 237 at 244 ff, Child Sexual Abuse and the Fact Finding Process - Some Thoughts on Recent Developments (1994) 1 Canberra L.R. 181 at 196 ff.

[77] [1983] FamCA 20; (1983) F.L.C. 91-353.

[78] The proposal put up by the husband involved the assistance of his mother and sister with whom Baker J. was not impressed, ibid at 78,363.

[79] These were: 1. Whether children raised by their 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.

[80] [1983] FamCA 20; (1983) F.L.C. 91-353 at 78, 365.

[81] Ibid at 78, 363.

[82] (1977) F.L.C 90-271.

[83] Ibid at 76, 445.

[84] Ibid at 74, 443.

[85] Ibid at 74, 444.

[86] Family Law Act 1975 s.68F(2)(i).

[87] Ibid s 68F(2)(j).

[88] Ibid s 68J.

[89] Ibid s 68 K.

[90] The utility of the provision is far from clear; for comment, see F. Bates, Principle and the Family Law Act: The Uses and Abuses of Section 43" (1981) 44 A.L.J. 181.

[91] For critical comment on these new provisions, see J. Behrens, Ending the Silence, But . . .Family Violence under the Family Law Reform Act . 91996) 10 Aust.J.Fam. L. 35.

[92] [1978] FamCA 93; (1978) 34 F.L.R. 448.

[93] In the Marriage of Kitchener (No2) [1978] FamCA 94; (1978) 34 F.L.R. 453 at 463.

[94] (1994) F.L.C. 92-515. For comment, see F.Bates, Domestic Violence and Children - Some New Developments (1995) 10(4) Aust. Family Lawyer 24.

[95] Kitchener may also be read as representing a situation where neither party was really an appropriate person with whom the children should reside: it appeared that the husband had a serious drinking problem and could not care for the children unaided.

[96] (1976) F.L.C. 90-729.

[97] Ibid at 78, 931.

[98] Above text at n.81.

[99] [1979] FamCA 81; (1979) F.L.C. 90-729 at 933.

[100] Above text at n.54. In the event, the husband was awarded custody, though the wife was awarded specified access, as well as counselling arrangements.

[101] (1992) F.L.C. 90-286.

[102] See, F. Bates, Child Custody and the Homosexual Parent: Some further Developments in Australia and the United States (1992) 2 Australian Gay and Lesbian L.J. 1.

[103] Above n79

[104] In the words of Hannon J. (1992) F.L.C. 90-286 at 79, 125, It is necessary to make a comparison of the respective values of the husband and M and the potential effect of the influence which M may have as a de facto parent. M presented as a person of strong personality and of unbridled arrogance who exerts, or attempts to exert, dominance over those close to him. He has an admitted record of offences against the fisheries laws, the traffic laws and against the provisions of the Poisons Act which relate to prohibited substances, and a significant proportion of those convictions were deliberate breaches of the law. He admitted that he had no hesitation in ignoring a law which he considered to be unjust and therefore is a person prepared to set himself up as an arbiter of which laws will be obeyed. The wife has no qualms about M's attitude and I find that disturbing, particularly in view of the role which she sees M playing in the parenting of J if she was to be the custodial parent.

[105] Above n2

[106] Parenthetically, J.N. Turner, Adoption or Anti-Adoption? Time for a National Review of Australian Law (1995) 2 J.C.U.L.R. 43 at 80 notes that society has maintained an equivocal atitude to the institution of adoption itself.

[107] See J. Millbank, Lesbian Mothers, Gay Fathers: Sameness and Difference (1992) 2 Australian Gay and Lesbian L.J. 21 at 28.

[108] In re Adoption of Evan 18 F.L.Rtr. 1175 at 1176 (Surr. Ct. 1992) per Preminger J.

[109] Above n 102 at 19.