Doyle and Doyle; Family court ÿ wards Custody to Homosexual Father MARGARET OTLOWSKI*

The case of Doyle and Doyle involved a custody dispute in which the custody of the two children of the marriage, boys aged 9 and 13 respectively, was awarded to their homosexual father. Although the case attracted some adverse publicity,1 analysis of the case reveals that it was a decision made on the basis of the welfare of the children and is entirely in accordance with earlier Family Court decisions dealing with the issue of homosexuality in custody and accesscases. Facts The husband and wife were aged 42 and 34 years respectively and had been married since 1979. In 1983 the husband had commenced a homosexual relationship with A.L. The wife became aware of the relationship early in 1984.Thereafter, the parties began to move apart with the husband spending more and more time with A.L. although for some time the pretence of a matrimonial relationship was maintained with A.L. participating in family events and at times staying at the matrimonial home with the parties. In August 1988 the husband and A.L. moved to Perth, Western Australia. In December 1988 the children travelled to Perth and stayed with their father for some weeks. The following year they again travelled to Perth to spend their summer holidays with their father. On this occasion, the elder child L. decided that he wanted to stay with his father and remained in Perth with the agreement of the mother. In December 1990,the younger child J. went to Perth for the summer holidays and decided that he also wanted to stay with his father. The mother opposed this proposal and commenced proceedings in the Family Court in February 1991for the custody of J. The husband opposed the wife's application and brought a crossapplication seeking the custody of J. as well as the elder child of the marriage, L. In her Reply, the wife consented to an order that the husband have the custody of L. Consequently, the principal issue beforethe court was the custody of the younger child J.

*

Lecturer in Law, University of Tasmania. See for example TheMercury, 10Janand 11Jan.1992.


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In the time between the institution of these proceedings and the hearing of the matter, both children resided in Perth with the husband and A.L.who were livingin rented accommodation.Neither the husband nor A.L. were in employment. The husband was in receipt of supporting parent's benefit. Both children were attending the local school. The wife continued to reside in the former matrimonialhome and was livingin a de factorelationship. The case was heard by JusticeHannon of the Family Court. His honour identified the central issue in these proceedings as the husband's homosexuality and his consequent relationshipwith A.L. In examining the relevant legal principles, he referred to the 'per se' approach in which a parent's homosexuality creates an irrebuttable presumption that the parent is unfit to have the custody of the child. His honour made it clear however, that the approach that homosexuality per se disqualifies a parent from having custody of a child has never been accepted in the determination of custody applicationsunder the FamilyLaw Act. 1975(Cth).He statedthat: In determining the issue of custody it is the function of the Court to address the specific circumstances of the case to the particular welfare of the child who is the subject of the application. The morality and the sexual orientation of the parents are but two of the important factors to be considered but they are limited in their effect to what relevancythey have, directly or indirectly on the welfare of the child. The parent's lifestyle is of no relevance without a consideration of its consequences on the child's well-being. Homosexuality is relevant only if it affectsthe parenting abilitiesor the welfare of the child, and for that reason the fact of that homosexuality does require that the Court, even taking the most liberal view, scrutinisethe parent's way of life. Justice Hannon referred to the case of L and L , widely ~ regarded as the leading authority in this area for it's exposition of relevantmatters to be consideredin caseswhere a homosexual parent is seeking custody or access. In that case, Justice Baker had listed eight matters derived from earlier authorities,which a court should take intoaccountin arrivingat its decision. Whilst noting that this list was not intended to be exhaustive, Hannon J. described it as an extremelyhandy check-listand proceeded to considerthese factorsin the contextof the evidenceof thecasebefore him.

(1)

The firstissue to be addressed was whether children raised by their homosexual parent may themselves become homosexual, or whether such an event was unlikely. Justice Hamon referred to empiricalstudieswhich suggestthat children raised by homosexual parents donot differappreciablyfromchildren raised in more conventional family settingsand are not likely to exhibit homosexual leaningsof inclinations.On the basis of the evidencebefore thecourttherewas nothingto suggest that

2 [I9831F.L.C. 91-353.


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(2)

(3)

(4)

(5)

the boys would be likely to become homosexual if allowed to remainwith their father. His honour went on to consider the possibility that childrenof a homosexual parent may be subject to stigma, taunts and ostracismby their peers, particularly in circumstanceswhere the parent is known in the communityas a homosexual.Whilst acknowledgingthe significanceof this factor,his honour stated that care must be taken not to over-emphasise the consequences of negative community attitudes. He was in no doubt that thechildrenwould be the subjectof cruel tauntsbut was satisfied that the father and his male companion were awareof this possibility and had taken a responsibleattitudein this regard; they were discrete in the conduct of their relationship and would be able to provide the support necessary to enable the children to cope with the difficulties they would inevitably encounter. His honour also referred to the fact that the presence of A.L. as the husband's companion had been part of the children'slives for so longthat they accept and understand the relationship and would therefore be more ableto withstand anynegativecommunitycomment. The third matter considered was whether the father would be ableto showthe sameloveand responsibilityas a heterosexual parent. Justice Hannon noted that on the basis of empirical evidence there is no evidence to suggest that homosexual parents are less capable than a heterosexual parent to adequately care for and love their children. On the facts,he found that the husband had always had a loving and caring relationship with the children and this was not in dispute in the proceedings. With regard to the fourth matter for consideration, namely whether a homosexualparentwill give the children a balanced sex education and take a balanced approach to sexual matters, JusticeHannon found that there was no evidence to suggest that the husband and his companion would give other than a balanced sexeducation to the children, and certainlythere was no suggestion that the children would become encouraged to becomehomosexual. The fifth relevant matter identified in L and L was whether or not children should be aware of their parent's sexual preferences. JusticeHannon noted that both children had for some time been aware of the husband sexual orientation and that they werenot discomforted by this knowledge.

(68~7)Consideration was also given to whether children need a parent of the same sex to model upon and whether children need both a male and female parent figure. Adopting the statementsofBakerJ. in L and L, JusticeHannon acknowledged that in a perfect society children would be reared in a


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(8)

household comprised of heterosexual parents living in a harmonious and stablehousehold.Hewent on to saythat since we do not live in a perfect society this was not alwayspossible, and on occasion cases will arise in which the court has to determine a custody dispute involving a homosexual parent which must be determined on the basis of the best interestsof the child. The final matter noted in L and L concerningthe homosexual parent's attitude to religion was held not to be a relevant matter in the proceedingsbefore thecourt. It was apparent from the wife's evidencethat shedid not think

that the husband's homosexuality and his relationshipwith A.L. were per se objectionable,but disapproved of her husband's 'values' which she claimed were related to his homosexuality. In particular she alleged that the husband was deceitful and had showncontemptfor her and women in general and she voiced concern that these values would rub off on the child J. However Justice Hamon found that none of the attributes of the husband of which the wife complained were made out in the present case. In assessing the wife claims, his honour thought it relevant to compare the husband's 'values' with thoseof thewife's de factohusband M, whom sheagreed would be in an position to exert influenceon J. if shewere to have custodyof the child. Although the wife had suggested to the court that M. was a person of good values whom she would have no hesitation in permitting to exercise influence over J. the court found M. to be a person of 'unbridled arrogance' who had in the past shown a flagrant disrespect for the law. Justice Hannon also found that he was a person of strong personality who would seek to exert dominance over those close to him. There was evidencebefore the court that M. had already sought to exercise an inappropriatedegree of influence and discipline over both children, particularly J, outsidethe scopeof any authority to which he may have been entitled as a result of his relationship with the wife. His honour was satisfied that this influence would increase if J. was to live in the household with the wife and M. and that such influence would not promote the wellbeingof the child. Essentially the wife's case was that the effect of the husband's lifestyleand values would be detrimental to J. in that he would be placed in moral danger from which she wanted to protect him. However, doubt was cast on the credibility of the wife's case on the grounds that her contention that J. was in moral danger was inconsistentwith her decisionnot to seek an order for the custody of the elder child L. The court found that her inaction to pursue the return of the child L. was inconsistentwith any fear that L.'s welfare was at risk and there was no reason for the wife to differentiate between the two children, suggesting that J. but not L. would be at risk if allowed to remain under the influence of their father. In any


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event, the court found that even if the wife genuinely believed that J. was in danger if he remained with his father, there was no foundation for that belief and there was nothing in the lifestyle of the husband which of itself was detrimental to J.'swelfare. A significant factorin this case was the strongly expressedwish of the child J. to remain with his father in Perth, set out in a Welfare Report that was admitted in evidence before the court.. It had been argued by the wife that J, being only 9 years of age, was not old enough to make the decision as he was not sufficiently mature to know what was in his best interests. In accordance with established Family Court authority, it was stated that; if the court is satisfied that the wishes expressed by the child are soundly based and founded upon proper consideration as well thought through as the abilityand state of maturity of the child will allow, it is appropriate to haveregard to thosewishes and to give such weight to them as may be proper in the circumstances. The court accepted that as J. was only 9 years of age his desire to remain with his father had to be weighed in balance with the valid comments made by his mother, but the court was satisfied that J.'s wishes were a reflection of his state of mind arrived at without the undue influence of others.JusticeHarmon was of the view that on the facts, there was little to choose between the competing proposals of either parent for J.'s welfare and therefore the genuine wishes of the child take on a particular significance in determining the issue of custody. Moreover, his honour noted that J. was content in the environment in which he was presently residing and took the view that to move him was neither necessary nor desirable for his longterm welfare. The court was satisfied that if the child was forced to return to reside with his mother against his strongly manifested wishes, there would be a risk to his emotionalwell-being. Another factor which was clearly influential in the court's decision to grant custody of J. to the father was the fact that an order in favour of the wife would have the effect of separating J. from his elder brother.Referring to the well accepted principle to be applied in custody cases that save in special or exceptional circumstances, children ought not to be separated from each other, Justice Hannon found that there was no justification for separating the children. It was accordingly ordered that the husband have the sole custody of both children.

The media reaction to this decision was somewhat sensationalised,with front page headlines that a homosexual father was awarded sons in a custody battle and an account from the mother to the effect that 'this decision downgrades the role of a natural mother and says homosexuality is all right- even preferable.' However comments of this nature fail to take into account the facts


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and circumstancesof the case the carefullyconsidered reasonsbehind JusticeHannon's decision. It is certainly true to say the decision is unusual in so far that custody was awarded to a homosexual father.Whilst there have been previous decisions of the Family Court in which custody was awarded to a homosexual parent these have almost invariably involved homosexual mother^.^ That custody was awarded in this case to a homosexual father is therefore of special relevance, particularly in light of frequent allegations that the Family Court discriminates against fathers in contested custody cases.4 Although the Family Court has repeatedly stated that there is no principle or presumption in favour of mothers in contested custody cases5 the suspicion has remained, at least in some circles, that a preference does in fact operate in favour of mothers? The decision in Doyle and Doyle clearly helps to dispel any such suspicion, demonstrating that the Family Court is not influenced by any presumptions in favour of the mother and will award custody to a homosexual father in circumstances where that best promotes the welfare of the child. In this respect it is quite a strong decision in favour of the father especially in light of the fact that he and his companion were livingin Perth which would inevitably mean that the children would not have a great deal of contactwith their mother who was residing in Hobart. The case is also significant in that it clearly demonstrates, through both the reasoning of the judge and the actual decision of the court, that there is no presumption that a parent's homosexuality per se renders a parent unfit as the custodian of the child. However the case does not set a precedent for homosexual parents. Rather, it should be understood as a decision based on its particular facts and circumstances. The mother's claims about the detrimental consequenceson the child J. if he was allowed to remain with his father were simply not supported by the evidence. Moreover, there was strong evidence that J. wished to remain with his father and that to forcibly return J. to his mother would be at the risk of his emotional well-being. The court was accordingly satisfied that it would be in the child's best interests if he remained in the care of his father. In reaching this result, the case followed established

3

4 5

6

See for example In the Marriage of O'Reilly (19771F.L.C. 90300, In the Marriage of Cartwright [I9771F.L.C. 90-302, In the Marriage of O'Reilly [I9771F.L.C.90-300, In the Marriage of Brook [1977]F.L.C.90-325, In the Marriage of Schmidt [I9791 F.L.C. 90-685, In the Marriage of L [I9831 F.L.C.91-353.For one of the few reportedcasesin which a homosexual father was granted custody, see In the Marriage of Sheperd [I9791F.L.C. 90-729. Seefor example theMercury 30 March 1992. In the Marriage of Raby (1976)27 F.L.R.412, In the Marriage of Hobbs and Ludlow (formerlyHobbs) (1976) 29 F.L.R. 101 and the High Court in Gronow and Gronow (1979) 144C.L.R. 513. Seen.5above.


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Family Court authority dealing with contested custody and access cases involvinga homosexualparent, in particular, the case of L and L as well as generally reinforcing the importance of the welfare of the child principle. One matter of particular interest was the court's approach to the issueof community attitudes and the possibility that children of a homosexual parent might be subjectto stigma, cruel taunts and social ostracism by their peers. As Justice Hannon noted, this issue has taken on great significance in the reported cases.7 Whilst acknowledging the relevance of this factor in so far as it pertains to the welfare of the child, his honour adopted a realistic approach suggesting that care must be taken not to over-emphasise the consequences of negative community attitudes. In his view, just as important as the consideration that the children will be subject to stigma and taunts is the consideration of whether the homosexual parent and his partner realise that this will occur and how they propose to assist the children in coping with it. Thus his honour preferred a constructive approach, focussing on the actual facts and circumstances of the case in order to assess the likely implicationsof taunts and stigma on the child and the degree of support that the child would receive from the father and his companion in coping with this difficulty. His honour's approach is to be commended in that it avoids the risk that parents who do not belong to the dominant social culture would inevitablybe at a disadvantage in a contestwith a parent who is part of that dominant culture simply because they may be subject to stigma and spiteful ~ornrnents.~This approach is also entirely consistent with the requirement under the Family Law Act 1975 (Cth) that custody decisions are made on the basis of the welfare of the child, having regard to the particular facts and circumstances of the case, rather than relying on questionable assumptions which presuppose that one environment is inherently superior to an alternative en~ironment.~ Another noteworthy aspect of the decisionis that d i k e quite a number of the earlier cases in which custody or access was awarded to a homosexual parent,10 no undertakings were required by the court aimed at restraining the behaviour of the father and his

7 8 9 10

F.L.C;(19921F.L.C.92-286 See also Goodman, E., 'Homosexuality of a Parent: A New Issue in Custody Disputes' (1979)5 Monash University Law Review 305 at 312313. Id.312. See for example, In the Marriage of Spry (1977) 3 Fam.L.R.11, 330 (mothergranted access subject to the condition that she and her lover undertake that there would be no display of sexual affection between them in the presence of the children) and in In theMarriage of O'Reilly [I9771 F.L.C. 90-300 (mother granted custody subject to the undertaking that she would refrain from any act which would reasonably be calculated to suggest to any of the children that she or any friendof herswas a lesbian)


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companion. On the factsof Doyle and Doyle this can be explained on the grounds that the court was satisfied that the father and his companion do not flaunt their homosexuality or their relationship and although they shared a bed, there are no unreasonable signs of affectionin the presence of the two children. In these circumstances, an undertaking requiring for example,that there be no overt displays of their sexual relationship in the presenceof the children or in public was clearly unnecessary. In any event, doubt has been cast on the value and appropriateness of such undertakings which appear to assume that exposure to such displays will adversely effect the child in question. One commentator has forcefully argued that it is preferable for a court not to impose undertakings with respect to sexual behaviour since they can be discriminatory, are in any event not enforceable and would tend to encourage on-going litigation in the event of a breach of the undertaking.ll In conclusion, whilst the facts and circumstances of the case and its outcome may justifiably be characterised as unusual, the decision of Justice Hannon in Doyle and Doyle granting custody of two boys to their homosexual father is a very sound and carefully reasoned decision, entirely consistent with the provisions of the Family Law Act 1975 (Cth) and established Family Court authority in this area.

11 Goodman,at 135.