Residency & Contact

My family/friends/colleagues/Aunt Doris have told me if I go to Court I will lose my children because of my sexual orientation...
The main concerns expressed by clients who have children from a previous heterosexual relationship are that:

1. they are not entitled to residency (formerly called custody) if they are known to be lesbian, gay or bisexual, ie that their children will be taken away from them; and/or
2. they will not be entitled to contact (formerly called access) with their children if they are known to be lesbian, gay or bisexual.

Residency (formerly custody)
The matters taken into account by the Family Court in making decisions about residency are complex, varied and very much determined by the particular circumstances of each case. It is not possible to make a blanket statement about what decision the Court will make because that decision will depend on the individual factors relevant to each situation. There are a number of reported decisions from the Family Court in relation to sexual orientation and residency from which the following general principals can be drawn:

• The fact the one parent is gay or lesbian does not of itself decide whether or not that parent will obtain residency of their children;
• Sexual orientation is one factor of a number of factors considered by the Court in deciding residency issues;
• There are numerous studies about homosexuality and parenting that indicate there is no significant difference between a child raised in a homosexual household and a child raised in a heterosexual household;
• Whilst children raised in a homosexual household may face particular issues as a result of a perception of difference, many children face similar issues during their childhood for a whole range of reasons not limited to the sexuality of their parents;
• Poor parenting has nothing to do with the sexuality of the parent.

Contact (formerly access)
The situation with contact orders is even clearer than residency. As a general principle the Family Court considers that a child has the right to contact with their non-resident parent. The Court will only deny all contact in exceptional circumstances. The sexuality of one parent does not of itself lead to a denial of contact. The extent of contact and the type of order the court might make depends on the particular circumstances of each case.

This Information Sheet provides information on the law in Queensland, Australia. If you are seeking information about the law in another state, territory or country, please contact a lawyer in that state, territory or country.

© Denise Maxwell, Solicitor 2009