Case Law
This digest consists of selected cases that are relevant to Over the Rainbow. For each case there is a summary of the facts and judgment.
The full text of these decisions can be found in case report volumes in any law library. University law schools have libraries that members of the public can use. Ask the librarians for assistance. The title of the case is followed by a year in brackets, sometimes a volume number, an abbreviated name of the relevant case report, and a page number. For example, '19 FamLR 260' means volume 19 of the Family Law Reports on page 260.
Selected cases can be found on the internet, although not all cases in printed case reports are reproduced electronically.
Leading federal and state cases can be found on the website of the Australasian Legal Information Institute at http://www.austlii.edu.au.
Recent family law cases can also be found on the Family Court website at http://www.familycourt.gov.au.
Inglis v Fish [1961] VR 607
Date of decision: 17 May 1961
Court: Supreme Court of Victoria
Walter Fish was charged with behaving in an offensive manner in a public place under the Police Offences Act 1958 (Vic) by First-Constable William Inglis. Fish pleaded not guilty and the charge was dismissed by the local court at Portland. Inglis applied to the Supreme Court for a review of the court's decision.
The facts:
At the public toilets in the Botanical Gardens at Portland, the male section backed onto the female section with a wall joining them. Someone had bored a hole into the wall. This enabled Fish to go into a cubicle in the male toilet and look through into the female cubicle while women were going to the toilet. He shut and locked the door to the cubicle, sat on the toilet seat and put his eye to the hole in the wall.
Inglis observed him going in and out of the toilet and followed him in. To see what he was doing he had to crouch down on his hands and knees and look under the door.
The decision:
The judge said that whether behaviour is offensive depends on where that behaviour took place and the circumstances in which it took place. He found that a toilet cubicle is a public place, regardless of whether the door is locked or not.
However, behaviour is only offensive if it occurs in a place where members of the public might reasonably be expected to be and in circumstances where the behaviour could be seen by anyone who happened to be present. It doesn't matter that no one was actually present or looking at the time.
The important element identified by the judge was that the behaviour could have been observed if a member of the public had been present.
In this case, although the behaviour was 'reprehensible and disgusting', it couldn't be observed by members of the public who happened to go into the toilet, because Fish had locked himself in the cubicle. It could only be seen by an unusual action, such as crouching down and looking under the door. Therefore his behaviour was not legally considered 'offensive'. The appeal was dismissed and the magistrate's decision upheld.
Pregelj v Manison; Wurramura v Manison (1988) 31 A Crim R 383
Date of decision: 22 December 1987
Court: Court of Criminal Appeal, Northern Territory
Steven Pregelj and Iris Wurramura were charged with offensive behaviour under the Northern Territory Summary Offences Act after being seen having sex by a police officer walking past their house. They were convicted. They appealed on the basis that for their behaviour to be offensive, the prosecution had to prove that they knew or intended that they could be seen from the street.
The facts:
On 27 August 1987 Constable Dyer was walking past a house at 8.50 pm. He saw movement in a bedroom and looked through the window. The window had no curtains and a light was on inside. The constable saw a white man having sex with an Aboriginal woman.
Pregelj and Wurramura both gave evidence in court that they did not know they could be seen from outside. They also gave evidence that they had taken precautions such as being in the corner to the side of the window.
The decision:
The judges found that for a crime to be committed there has to be a mental element, that is, the person committing the crime has a guilty mind and intends to commit it. The same applies to the offence of offensive behaviour.
This means that a person cannot be guilty of offensive behaviour if he or she was unaware that their conduct could be seen by someone in a public place.
In this case, the people charged did not intend their behaviour to be offensive, they took some precautions to be concealed and they did not know they could be seen. The judges also commented that they were engaged in lawful sexual activity in their own dwelling. Even though they may have behaved immodestly, this did not amount to offensive behaviour.
The appeal was allowed and the convictions quashed.
Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074
click here for the Australian Legal Information Institute page for this case.
Date of decision: 12 October 2001
Court: Family Court of Australia
Kevin, a post-operative female to male transsexual and his wife, Jennifer, were married in NSW on 21 August 1999. They later applied to the Family Court for a declaration that their marriage was a valid marriage under the Marriage Act 1961 (Cth).
Marriage is defined under the Marriage Act as being the union of a man and a woman. The main issue in this case was whether Kevin could be considered a man and therefore able to marry a woman. This is a highly significant test case as it is the first time an Australian court has had to decide whether someone is a man or a woman for the purpose of marriage law.
It is worth noting that the judge explicitly said that the case was not about homosexual relationships and marriage. He also made no decision about the male or female status of a pre-operative transsexual.
The facts:
Kevin was born a female but from a very young age considered himself a male. In 1995, at the age of 30, he started a gender reassignment program, involving hormone treatment, breast surgery and hysterectomy. After he met Jennifer they successfully participated in the IVF program, using an anonymous sperm donor, and Jennifer gave birth to a child in November 1999.
In October 1998 the NSW Registrar of Births, Deaths and Marriages issued Kevin with a new Birth Certificate showing his sex as male. He was issued with a passport on 15 March 2000 stating his sex as male. He and Jennifer and their son have a family card from Medicare.
There was a lot of evidence from family, friends and work colleagues that Kevin is widely regarded as a male and that he and Jennifer are treated as husband and wife.
The decision:
Previously the main relevant case in this area was an English case, called Corbett, decided in 1971. That case decided that whether someone is a man depends on whether he was male at the time of birth and that this was determined by a biological test, involving his gonads, genitals and chromosomes. The judge in the Kevin case examined Corbett carefully, and rejected its idea that there is some 'true' or 'essential' sex that a person has for life.
The judge decided that words like 'man' and 'woman' in legislation will normally be taken to refer to the reassigned sex of post-operative transsexuals.
The judge decided that to determine someone's sex for the purpose of marriage law, there were a number of relevant factors to be taken into account - a person's biological and physical characteristics at birth was only one of these. Other important factors include the sex someone is brought up as, a person's self-perception as a man or woman, the extent to which the person has functioned and is accepted in society as a man or a woman, and any medical sex re-assignment treatment the person has had.
In this particular case, the judge considered the following factors to be significant:
Kevin had always considered himself to be male.
He was perceived by others to have had male characteristics from a young age.
Before the marriage he had been through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery.
At the time of the marriage he was perceived and accepted as a man by family, friends and work colleagues. These people, who knew all the circumstances, also accepted his marriage.
He was accepted as a man for a variety of social and legal purposes, including the IVF program.
For these reasons the judge held that the marriage of Kevin and Jennifer was valid.
Note that the federal Attorney-General has appealed the decision in Re Kevin to the Full Court of the Family Court of Australia.
McBain v State of Victoria [2000] FCA 1009
click here for the Australian Legal Information Institute page for this case.
Date of decision: 28 July 2000
Court: Federal Court of Australia
Dr McBain, a gynaecologist, asked the Federal Court for a declaration that section 8 of the Victorian Infertility Treatment Act 1995 is inconsistent with the federal Sex Discrimination Act 1984 and is therefore invalid.
Section 8 of the Victorian Act says that for a woman to be eligible to have infertility treatment she must be either married or living in a de facto relationship with a man. Under the federal Act it is unlawful to refuse a service to someone because of their marital status.
Under the Commonwealth Constitution, if a State Act is inconsistent with a federal Act the State Act is unlawful to the extent of the inconsistency.
The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church were given permission to make submissions to the court in this case.
The facts:
Dr McBain is a gynaecologist specialising in reproductive technology and IVF techniques. In August 1999 he was consulted by Lisa Meldrum, a single woman not living in a de facto relationship, who wanted to have IVF treatment. He was unable to administer treatment because her single status precluded her under the Infertility Treatment Act.
The decision:
The court found that section 8(1) of the Victorian Act is inconsistent with section 22 of the federal Act and therefore is inoperative. In other words, it is not lawful to restrict the availability of IVF treatment to women who are married or living in a de facto relationship.
The court also said that the following other sections of the Victorian Infertility Treatment Act, to the extent that they depend on a marriage or de facto requirement, are inconsistent with section 22 of the Sex Discrimination Act and are inoperative:
8(2) and (3),
9(1)(b),
10(1)(a) and (b), 10(2),
11(1) and (2),
18(1)(a) and (c),
20(1), (2) and (3),
21,
62(2)(d),
63(2)(c),
66(c),
67(1) and (4)(a),
71(1), (2), (3), (6), (7), (8) and (9),
72(1), (3), (4), (5), (7) and (8).
This meant that Dr McBain was lawfully able to provide treatment to Ms Meldrum despite the fact that she is not married.
Note that reproductive services in Victoria are still restricted to women who are infertile. This has generally been interpreted to mean medical or clinical infertility. Lisa Meldrum is able to receive treatment from Dr McBain because she is medically infertile.
However, the Infertility Treatment Act does not use the term medical infertility - rather, it refers to whether a woman is 'unlikely to become pregnant' without infertility treatment. There has been much discussion about what this means and the Infertility Treatment Authority has considered whether it should introduce guidelines to include treatment for women who are 'psychologically infertile'. This issue has not yet been tested or resolved.
Re McBain; Ex Parte Australian Catholic Bishops Conference;
Re McBain; Ex Parte Attorney-General (Cth) ex rel Australian Episcopal Conference of the Roman Catholic Church [2002] HCA 16
click here for the Australian Legal Information Institute page for this case.
Date of decision: 18 April 2002
Court: High Court of Australia
The McBain decision was unsuccessfully challenged in the High Court by the federal Attorney-General and the Australian Catholic Bishops Conference. The High Court did not re-examine the facts of the case or review the Federal Court decision.
The judges said that people who weren't parties to the Federal Court action didn't have 'standing' (the right) to ask for that decision to be overturned. Neither Dr McBain nor the State of Victoria (who were the parties to the court action) had appealed to the High Court.
Therefore the applications to the High Court were refused and the Federal Court decision of McBain stands.
In the Marriage of A and J (1995) 19 FamLR 260
Date of decision: 26 June 1995
Court: Family Court of Australia
After the breakdown of their marriage A and J both applied to the Family Court for custody of their 4-year-old son. At the time the wife was living in a same-sex relationship. The husband was granted custody of the child and the wife was granted access (contact). This case was an appeal by the wife against that decision.
The facts:
A and J were married in 1989 and separated in 1993. They had one child, born on 4 September 1990. They lived in the Ballarat area. They shared the care of the child fairly equally between them, although overall the husband had done more as he was unemployed for a period after the child was born and the mother was studying part-time.
After they separated they reached an agreement about sharing care of their child equally - he moved between their houses on a four-day, three-day per week basis, alternating every second week. At the time of the original custody hearing the husband was planning to move to Adelaide. By this time the wife was living in a same-sex relationship and planned to stay in Ballarat.
The decision:
The three appeal judges dismissed the wife's appeal and upheld the decision of the trial judge.
They said that under the Family Law Act the welfare of the child is the most important consideration. The trial judge had to weigh up all the competing factors relevant to the welfare of the child. These included:
- the relationship of the child with each parent and other significant people - he found there was a close bond with each of the parents and that both had been significantly involved in the child's upbringing. He also found that the child had a satisfactory relationship with the wife's new partner.
the wife's sexuality - this was considered a relevant factor, but it was not an adverse factor, i.e. it was not a reason of itself not to grant custody to the wife.
effect on the child of separation - the judge found that separation from either parent would be difficult for the child. Although moving from Ballarat would be disruptive, many children move to new surroundings without significant trauma.
capacity of each parent to provide for the child's needs - the judge found that both parents could do this.
need to protect child from harm - the judge found that the child was well-adjusted and that the fact that the wife and her partner had homosexual friends was not harmful to the child.
The appeal court decided that the judge had properly considered all the relevant factors. He was satisfied that the child had a good relationship with both parents, that both parents would be able to provide for his physical and emotional needs and that the competing proposals for living arrangements were pretty evenly balanced.
However, overall, the judge concluded that the most important factor was the need for the child to have adequate contact with the husband as a balancing figure in his emotional development. Therefore it was better for the child to move to Adelaide with the father. It was significant in this case that the father had a great deal of experience in caring for the child, possibly more than the mother.
Re B and J (1996) 21 FamLR 186
Date of decision: 22 November 1996
Court: Family Court of Australia
B, a man who had provided semen to a lesbian couple, applied to the Family Court for a declaration that he was not obliged to pay child support under the Child Support (Assessment) Act 1989 (Cth) for the child born as a result. Under that Act, child support can only be sought from a 'parent' of the child.
This case is significant because the court had to consider whether a sperm donor under a private arrangement is legally a 'parent'.
The facts:
B and R had known each other for many years. R was in a lesbian relationship with J. B provided semen to the couple in February 1988 and September 1993 for insemination into J. All three agreed that B would not have to provide any financial support for the children or have any parenting obligations.
As a result of the insemination two children were born. They were aged seven and two at the time of the court decision. B was registered as the father of each of the children on their Birth Certificates, with his consent. However, he had no substantial contact with the family and played no parenting role with either child.
In 1995 the Department of Social Security told J, the biological mother of the children, that she would no longer receive her pension unless she applied for child support from the sperm donor. The Child Support Agency then sent him a child support assessment for the 1994/95 year and then the following year an assessment for the 1995/96 year. He didn't pay any of these amounts.
The decision:
The court said that a person who is not a parent can apply for child support under the Act. However, child support can only be sought from a parent.
This decision is slightly complex as it involves the interaction of three different Acts of Parliament:
the Status of Children Act 1974 (Vic),
the Family Law Act 1975 (Cth), and
the Child Support (Assessment) Act 1989 (Cth).
The judge said that it is clear that ordinarily biological parents are treated in law as parents. However, it is different for children who are born as a result of artificial conception.
Under the Status of Children Act 1974 (Vic) a man who produces semen for use in artificial insemination has no rights or liabilities in relation to the child. If the mother is married or living with a man in a de facto relationship then legally they are both the parents of a child born as a result of an artificial conception procedure, regardless of the biological relationship.
Under section 60H of the Family Law Act a man is only the parent of a child born as a result of artificial conception if he is covered by these provisions of the relevant State Act. Note that all States and territories have legislation similar to the Victorian Status of Children Act.
Under the Child Support (Assessment) Act a person is a parent if they are considered to be a parent under section 60H of the Family Law Act.
In this case, that means that B is not a parent and therefore he does not have to pay child support.
The judge also said that in relation to parentage there is no difference between anonymous and known sperm donors - that is, regardless of whether women use authorised fertility clinics with an anonymous donor or whether they self-inseminate using sperm from someone they know, the sperm donor is not legally the father of the child.
Note that the judge in this case left open the possibility that a sperm donor could be considered a parent for the purpose of child maintenance orders under the Family Law Act. However, the cases of Tobin and Re Patrick both found that sperm donors are never a parent under the current law.
Tobin and Tobin [1999] FamCA 446
Date of decision: 13 May 1999
Court: Family Court of Australia
H and W, who were a married heterosexual couple, had been granted guardianship of a foster child by the Queensland Supreme Court. After they separated W applied for child maintenance under the Family Law Act and the Family Court ordered H to pay maintenance.
H appealed against this decision, claiming that the Family Court did not have power to make a child maintenance order against the guardian of a non-biological child.
Although this case does not relate specifically to gay and lesbian issues, it is important because it involved the question of who is a 'parent'.
The facts:
H and W separated in 1996. J, born 10 January 1989, was not the biological child of either H or W. They cared for J as foster parents and then were granted guardianship in1993. After the separation J lived with W and parenting orders were made about contact and other specific issues.
The Family Court said that they were not 'parents' under the Child Support (Assessment) Act and so W was not entitled to child support from H. However, the court made a parenting order for maintenance under the Family Law Act.
The decision:
The appeal judges decided that the judge had made a mistake in ordering H to pay child maintenance. They said that although W was entitled to apply for child maintenance as a person 'concerned with the care, welfare or development of a child' (not as a parent), only 'parents' and 'step-parents' can be ordered to pay child maintenance.
They agreed with the case of B and J. They found that under the Child Support (Assessment) Act 1989 (Cth) the only people who can be required to pay child support are:
a natural parent of a child (this does not include sperm donors),
an adoptive parent, or
a person 'deemed' to be a parent because of an artificial conception procedure (i.e. only a man who is married to or living in a de facto relationship with the mother is legally considered the father).
They also found that under the Family Law Act the only people who can be ordered to pay child maintenance are:
a natural parent of a child (this does not include sperm donors),
an adoptive parent,
a person 'deemed' to be a parent because of an artificial conception procedure (i.e. only a man who is married to or living in a de facto relationship with the mother is legally considered the father), or
a step-parent (someone who is or has been married to a parent of the child).
In this H and W were not 'parents' as they did not fall into any of those categories.
Re Patrick (An Application Concerning Contact) [2002] Fam CA 193
click here for the Australian Legal Information Institute page for this case.
Date of decision: 5 April 2002
Court: Family Court of Australia
Patrick was a child born to a lesbian couple with the assistance of a sperm donor. After the relationship between the sperm donor and the couple broke down the sperm donor applied to the Family Court for parenting orders. Orders were made on 2 June 2000, giving the donor contact rights, with the understanding that the orders would be reviewed when Patrick turned two. The lesbian couple subsequently applied to have the orders revoked and asked that the donor be allowed no further contact with Patrick.
This is a significant case as it is the first of its kind involving the rights of the sperm donor to contact with the child. One of the important issues in the case was the nature of the agreement between the people involved as to the sperm donor's future role in the child's life. The court looked at:
what the agreement was - it was a verbal agreement and there was a dispute as to what the terms were.
whether an agreement like this is binding.
The case also considered the question of whether the sperm donor was a 'parent'.
The facts:
In October 1997 the two women placed an ad in the gay press seeking a suitable sperm donor. In January 1998 the donor entered into a verbal agreement with the couple. In the early stages of negotiations the trio had an amicable relationship.
Patrick was born in September 1999. By that time the relationship between the donor and the couple had soured - the couple wanted him to have only a peripheral role in the child's life, whereas he wanted to be involved in all aspects of the child's life.
The couple concealed the expected date and place of birth from the donor. Once he learned of Patrick's birth through a friend he applied for a court order for contact.
There was significant disagreement about what the terms of their verbal agreement were. The donor claimed that it was agreed that he would be present at the birth and that he would have regular and frequent contact, with the child knowing him as his father. The women, on the other hand, claimed that their intention was always that the donor would have a limited role and that they would be the primary parental figures in the child's life.
The decision:
The judge preferred the donor's evidence in relation to the agreement and found that before conception the agreement was that the donor would play an active role in the child's life.
He strongly recommended the people in this situation should sign a written agreement so that at least there will be no dispute about what has been agreed to.
Nevertheless, he made it very clear that regardless of what an agreement says, the court always has a duty to make a decision that is in the best interests of the child. The court will not be bound by the terms of the agreement.
In relation to whether the donor was a 'parent', the judge agreed with the case of B and J which found that a sperm donor is not a parent for the purposes of the Child Support (Assessment) Act 1989 (Cth). The judge in B and J left open the possibility that a sperm donor could still be a parent under some provisions of the Family Law Act 1975 (Cth). However, the judge in Re Patrick said that it followed that a sperm donor is not a 'parent' for the purposes of the Family Law Act either.
Because the donor had shown himself to be a person 'concerned with the welfare of the child' he was able to have a parenting order made in which he was given certain parental responsibilities. The judge decided that the donor should be allowed to have regular contact with Patrick. He took into account the donor's actions in consistently maintaining an interest in seeing Patrick and his understanding when he provided sperm that he would be involved in the child's life.
The judge commented on the inadequacy of the law in this area and specifically recommended that State and federal parliaments consider what legislative changes are needed so that gay and lesbian families are accommodated by the law.
W v G (1995) 20 FamLR 49
Date of decision: 2 February 1996
Court: Supreme Court of New South Wales
Two women, W and G were in a relationship. After their relationship broke down W applied to the NSW Supreme Court for an order granting her property rights in the house which had been bought by G during the relationship.
She also wanted G to provide financial support for her 2 children who had been born as a result of artificial insemination during the relationship. G claimed that the primary responsibility for supporting the children lay with the sperm donor, as biological father.
The facts:
W and G lived together in a relationship between March 1986 and May 1994. It was a volatile relationship, with many separations during that period. They both had periods of unemployment and employment during their relationship. At the start of the relationship G had considerably more assets than W - she owned a unit, a car and a motor bike, and had about $9500 in savings.
In March 1987 G bought a house, which they both lived in. It was mainly paid for from the sale of her car and unit, apart from a small contribution from W towards the deposit. They shared household expenses, but largely maintained separate finances and separate bank accounts.
In 1989 they organised for an acquaintance to be a sperm donor and as a result W had a son on 26 November 1989. The arrangement with the donor was that he would have no involvement with or responsibility for the child. In December 1990 they sold the house and bought another house. The difference in the purchase price came from a loan taken out by G, which she paid off. On 12 January 1992 W had another child using sperm from the same donor.
After G's father died in March 1993 she inherited a substantial sum of money. She subsequently formed another relationship and moved to Canada.
W, who had the care of both children, brought this court action in November 1994.
The decision:
In relation to the children, the court found that although the initiative came from W, nevertheless G had indicated that she would participate with W as parent of the children and would contribute to raising the children. Because G participated in the act of conception and acted as a parent to the children she was liable to provide material support for them.
G was ordered to provide just over $150,000 towards the costs of raising the children. The judge made it clear that this payment was not for the benefit of W, but must be used for the benefit of the children. The money would be invested and paid to W in monthly instalments for this purpose.
In relation to the property, the court found that their accommodation was almost entirely provided by G and that W's non-financial contributions to improvements did not give her any property rights.
In relation to the sperm donor, the court found that a sperm donor who is not living with the biological mother on a 'bona fide domestic basis' is not a 'parent' and is not liable to pay child support.
Note: Although this is a NSW case, similar principles would apply in Victoria. The outcome in relation to property may be different now since the Statute Law Amendment (Relationships) Act 2001 has given same-sex couples in a domestic partnership the right to apply to the Supreme Court for an order under the Property Law Act. This case was decided under the common law.
Re Brown and Commissioner for Superannuation (1995) 38 ALD 344
Date of decision: 215 May 1995
Tribunal: Administrative Appeals Tribunal (Commonwealth)
After Greg Brown's male partner died Greg applied for spouse benefits from his partner's superannuation scheme. This was refused on the basis that Greg did not have a 'marital relationship' with the deceased person as defined by section 8A of the Superannuation Act 1976 (Cth). Greg applied to the Commonwealth Administrative Appeals Tribunal for a review of that decision. The main question that the tribunal had to decide was whether Greg was Robert's 'spouse' at the time of his death.
This case is significant as the tribunal had to decide for the first time whether a same-sex partner had rights to their partner's superannuation after death similar to the rights that heterosexual partners would have. It also contains an important discussion of the meaning of the words 'husband' and 'wife' and whether a person in a same-sex relationship is considered a 'husband' or 'wife' under Commonwealth law.
The facts:
Greg Brown and Robert Corva met in 1982. They became lovers and then started living together in December of that year. Greg and Robert both worked full-time. They pooled their income and shared all living expenses. They were accepted by friends and family as a couple. There was no dispute before the tribunal that their relationship was genuine and on a permanent basis.
Robert was employed by the Commonwealth Department of Defence from January 1977 and was a member of the Commonwealth Superannuation Scheme. In 1985 he was diagnosed HIV-positive. He worked until March 1993, when he applied for invalidity benefits under the Superannuation Act. On 26 August 1993 he died of HIV/AIDS-related complications. He was 35 at the time of his death.
In his will Robert left the whole of his estate to Greg. In October 1993 the Commissioner for Superannuation approved payment to Greg of the superannuation benefit due to Robert's estate. In March 1994 Greg also applied for spouse benefits under section 81(1) of the Superannuation Act.
Section 81(1) provided for an entitlement to a spouse benefit where an 'eligible employee' dies before attaining maximum retirement age and is survived by a 'spouse'. Greg's application for spouse benefits was refused on the basis that he did not have a 'marital relationship' with Robert as defined by section 8A of the Act and hence was not a 'spouse' surviving a deceased person under section 8B of the Act.
There was no dispute that Robert was an 'eligible employee' at the time of his death and he died well before the maximum retirement age. So the only dispute was whether Greg was Robert's 'spouse'.
The decision:
To decide whether Greg Brown was eligible for spouse benefits under the Superannuation Act the tribunal examined sections 8A and 8B of the Act. Section 8B(2)(a) contains a definition of 'spouse' as a person who 'had a marital relationship with the deceased person at the time of the death'. Section 8A defines 'marital relationship'. Under this section, to be in a marital relationship with another person, you have to have 'ordinarily lived with that other person as that other person's husband or wife on a permanent and bona fide domestic basis' - whether or not you are legally married.
Much of the tribunal's decision centres on the meaning of the words 'husband' and 'wife'. They found that legally these words can be used to refer to a de facto heterosexual couple but not to a same-sex couple. The tribunal decided that these words have a complementary gender relationship, with 'husband' referring to the male partner and 'wife' referring to the female partner. In other words, the very use of the word husband implies that there is a wife and vice versa, which means there must be a male and a female partner. The tribunal found that 'a "husband" and a "wife" are a man and a woman who are married to each other, with or without a marriage ceremony'. This means that the words 'husband' and 'wife' can't apply to partners in a same-sex relationship.
The tribunal also considered the phrase 'lived as that other person's husband or wife'. Greg Brown's barrister argued that this extended to people who live in the same manner as husband and wife. However, the tribunal found that it meant people who live in the capacity of husband or wife, and that section 8A is restricted to people who fall within the natural and ordinary meaning of 'husband or wife' and does not extend to people who are simply in a similar situation to a husband or wife.
Furthermore, the tribunal looked at the intention of Parliament when section 8A was added to the Act in 1992 - they said it was clear that section 8A was designed specifically to include people 'of the opposite sex who lived in marriage-like relationships regardless of whether they were legally married'. The fact that the people must be of the opposite sex is inherent in the use of the words 'husband' and 'wife'.
Accordingly, the tribunal affirmed the decision of the Commissioner for Superannuation - Greg Brown was not entitled to a spouse benefit from his partner's superannuation. It is interesting to note that the tribunal said, 'It gives us no joy to do so'. They said they had no doubt that Greg and Robert were in a close marriage-like relationship, yet they had to apply the law as they found it. They observed that the 1992 amendments, which were designed to remove discrimination on the grounds of marital status, gave no redress in relation to the discrimination demonstrated in this case.
Note: as superannuation is federal law, it has not been affected by the 2000 Victorian law reforms and the introduction of the concept of 'domestic partner' into Victorian law.
Since this case was decided there have been various attempts to change the superannuation law. In April 1999 the Human Rights and Equal Opportunity Commission published a report entitled Superannuation Entitlements of Same-Sex Couples - Report of Examination of Federal Legislation (HREOC Report No. 7). The Commissioner found that the superannuation legislation did not comply with Australia's international human rights obligations - it contravened the prohibition on sexual preference discrimination in the International Covenant on Civil and Political Rights and the ILO Discrimination (Employment and Occupation) Convention, both of which are scheduled to the Human Rights and Equal Opportunity Commission Act 1986. The report recommended legislative amendments to allow surviving same-sex partners to benefit from superannuation in the same way that heterosexual partners do. A copy of the report can be found on the Commission's website (http://www.hreoc.gov.au) under the links to 'publications' - 'human rights'.
In 2000 federal member of parliament Anthony Albanese introduced a private members bill called Superannuation (Entitlement of Same Sex Couples) Bill. The Bill was referred to the Senate Select Committee on Superannuation and Finance - their report largely supported the need for the superannuation laws to be reformed, but so far the Commonwealth Government has refused to do so.
