II: Family as a Commonsensical Device and its Place in Law

Known biological or legal

Non-biological, non-legal or not known biological



Parental relationship

‘Other person’ relationship

Significant amounts of contact

Limited amounts of contact

It seems that, for Guest J, having established that it was intended that Patrick’s father be a known donor, the latter also becomes a parent, notwithstanding the failure of the FLA to acknowledge this. Consequently, Patrick has a right to maintain a parent–child relationship with his ‘father’. This justified contact arrangements normally ordered in applications on the part of a parent, pursuant to s60B, which establishes the principles that:



children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and



children have a right of contact, on a regular basis, with both their parents and with other people significant to their care.22


The contact arrangements were settled, despite the Court having noted that the mother and co-parent, along with Patrick, formed a homo-nuclear family. In effect, however, the Court construes Patrick’s family as comprised of mother, co-parent, father (as opposed to ‘other person’) and child, with the father-role surpassing the co-parent role in significance. In other words, the hetero-nuclear family was re-affirmed as the model for the judgment, with the co-parent becoming no more than an ‘other person’. This is further indicated by a telling language slip where his Honour mistakenly refers to the biological father as the ‘husband’, drawing, of course, on the single categories usually before the Court23―and, perhaps, displaying the FLA’s historical grounding in questions of marriage.

Hetero-normative trends in contact were consequently applied in the Patrick case: a progressive expansion of contact time over a period of four years, culminating by 2004 with Friday-to-Monday contact on alternate weekends and an assurance that Patrick have contact with the ‘father’ on Father’s Day. The Court ordered the norms of contact adopted for hetero-normative family relationships.

If, however, we were to view the known donor as an ‘other person’, notwithstanding the ‘biological’ relationship, then we open the door to more creative contact arrangements as, say, we might if the applicant were a member of the extended family or a close family friend; that is some ‘other person’ with a significant relationship to the child. The judgment indicates that this scenario is exactly what the homo-nuclear family was concerned about―that the relationship between the donor and Patrick would be equated with a father-son relationship at the expense of the homo-nuclear family constituted by Patrick, his biological mother and the social mother (or co-parent). As the judgment reports:

In the course of her evidence, the mother said that there was no need for a ‘… parental’ father in Patrick’s life. When asked why Patrick should be different from any other child and not have a right to know his father, the mother jauntily responded ‘…because he’s got leso’s [sic] for parents’. […] She said that if a parental relationship developed between the father and Patrick, it would conflict with the parenting offered by the co-parent and herself. […] The mother agreed, when cross examined […] that her objection to contact was based upon a fundamental belief that children can be raised in a lesbian household without a father (in the traditional sense). […] From what I have both heard and read, it is doubtless true that children can be happily raised within a homo-nuclear family, but the difference here is that the father desires and has always desired to play an active and fatherly role in the life of his son.24
When it was put to the mother that Patrick had two families she responded: ‘No, he has one family and he has a donor’.25

While Guest J accepts the legitimacy of the homo-nuclear family form, he suggests that the mother had a ‘hardened’ position and characterised her view and that of the co-parent as predicated on ‘philosophical and ideological bases’.26 The mother’s desire to maintain a homo-nuclear family model was, in effect, dismissed as a ‘philosophical and ideological’ position, obstructing a resolution, which could include the father-donor as incumbent in the device ‘family’.

What Guest J may have failed to appreciate is that the desire to involve the father was in itself a ‘position’, in fact a commonsensically anchored social position, which Patrick’s family was trying to counter by moving to a more predication-based account. The involvement of the donor, as father, was, perhaps, as alien to the conception of family held by the mother and co-parent, as the conception of a two-parent, fatherless family was to the Court and, perhaps, to the broader, hetero-normative community. The viewpoints indicated differing ideas of the categories that could come to comprise the device ‘family’. The mother’s view of what constitutes ‘family’ (significantly enough) was enabled by establishing it according to the predicational, rather than categorical, aspects of the relationships. On the mother’s characterisation, her partner did in fact ‘do being a parent’―she had all the predicational characteristics of the category ‘parent’ (‘mother’ and/or ‘father’) in the device ‘family’ but was not granted incumbency in the device; by contrast with one (the donor) who would commonsensically have such incumbency without ever having to display the predicate of ‘parenting’.

It is unlikely that there could have been a mutually agreeable outcome for this case because of the complexity of the issues and the base position of the FLA. Guest J notes the difficulties of the case given the heterosexist basis of the FLA. He says that:

It is clear that gay and lesbian families were not considered by the legislature when s60H of the Act was being drafted. These families differ in significant ways from heterosexual families who access artificial insemination services.… [I]t is time that the legislature considered some of the matters raised, including the nature of parenthood, the meaning of ‘family’ and the role of the law in regulating arrangements within the gay and lesbian community. The child at the centre of this dispute is part of a new and rapidly increasing generation of children being conceived and raised by gay and lesbian parents. However, under the current legislative regime, Patrick’s biological and social reality remains unrecognised.27
Nevertheless, whilst the judgment indicated research into alternative parenting arrangements and the issues of same-sex families―a real and stated desire on the part of Guest J to adopt an alternative framework―he was limited by a standard commonsensical version of familial possibilities.

What does this case stand for? What is its ratio? An interpretation of family was not a key issue for the Court, except as an addendum to the issue of whether or not being a sperm donor was sufficient to entitle parenthood. On this latter point Guest J answers the question ‘is a known sperm donor, a “parent”?’ in the negative, finding that a sperm donor merely has jurisdiction in the Family Court as ‘any other person’. Despite this finding, his Honour uses the nomenclature of ‘father’ and attaches rights and duties to the donor accordingly, an approach open to him under the discretionary powers granted pursuant to s65E, but nevertheless indicating the social and cultural power of dominant values in the constitution of the family.

Because the FLA is shrouded in a quite strict categorisation-centred means of determining the roles of persons (as opposed to a possible predication-centred approach), it is difficult for any Court to move beyond the conventions commonly seen to comprise the MCD ‘family’. Yet it is possible for the law to be framed in a manner which does consider the predicational status of parties and determine family accordingly. Indeed the Australian states and territories have set a trend for doing so, in relation to the property provisions of those families excluded from the Commonwealth jurisdiction.

Legislating Predicationally?

It took little time for the states and territories to respond to the FLA’s limits with respect to the disbursement of familial property upon separation. New South Wales was the first state or territory to provide clear statutory rights in relation to the property of relationships not recognised by the FLA.28 However, like the FLA, the De Facto Relationships Act 1984 (NSW) defined its jurisdiction in categorisational terms: that is, with reference to a man and woman living in a marriage-like relationship.29 It sought to create a means by which families which looked like traditional families (but which failed the matrimonial causes test) could have simple rules for determining property disputes. Other states followed suit in introducing legislation for heterosexual de facto couples.

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