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Same sex custody battle over children conceived by IVF decided in the “best interests of the children”

A custody battle between a same sex couple over custody rights to their two children conceived by IVF, was decided just like any other custody dispute – in the best interests of the children.


Recent court decision concerning same sex custody dispute settled in the best interest of the children.

Ms. Packer raised the issue of whether different regard may have been given to the matter, if the issues were between a traditional heterosexual couple as opposed to a same sex couple.  However, the Court dismissed that suggestion as being “ludicrous”.  It stated that the matter had been considered on its own merits in the best interests of the child.

The court took into account the views of the children, the lack of child-parent bond to Ms. Packer, and the deteriorated relationship between the children and Ms. Packer.  It found that it was in the child’s best interests for the biological mother, Ms. Irwin, to have sole parental responsibility.  It ordered that the children spend time with Ms. Packer as agreed between the both parents in accordance with the children’s requests.

The biological mother, Ms. Irwin, 47, a social worker, had remained the carer of the children after the parties had separated.

Following the separation, Ms. Packer, 46, also a social worker, began a new relationship.  She did not keep up contact with the children, including missing Christmases and birthdays and cancelling spend time arrangements, had irregular and unreliable involvement with the children, and her bond with the children had deteriorated over time to the point that it was distressing for one of the children, who would “get angry and lock herself in her room” if forced to spend time with Ms. Packer*.

The Court awarded Ms. Irwin (the biological mother) sole parental responsibility.

This case confirms yet again the hefty weight given by the Courts to the best interests of the children.

You can read the whole case here.

*89(v) Transcript, Packer & Irwin & Anor [2013] FCCA 658

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