Is Your Sex Life Relevant?

The Family Court will only make parenting orders if it is satisfied that it is in the best interests of the child to do so. Therefore, in family law disputes, parties will be required to disclose any information which may influence the court's determination of the child's best interests. But does this include details of your sex life?

The nature of family law, means that parties are required to provide information about sensitive and personal matters, which may include information about your relationship(s) and your sex life. However, the Family Court is not a court of morals or ethics, it is not the role of the court to judge the personal relationships of the parents. But the court will have regard to matters, like your relationship(s) and your sex life to the extent they impact the determination of the best interests of the children.


This case concerned a relocation application. The Mother applied to relocate to Queensland from Canberra to join her new partner Mr C. The Father opposed the relocation.

At the time of the hearing, the Mother and Father had been separated for approximately 4 years. There were three children of the relationship aged 12, 11 and 9, and a shared care arrangement had previously been agreed to.

During the proceedings, the Father was contacted by a former partner of Mr C, Ms D. Ms D revealed that the Mother and Mr C were in an open relationship. Ms D gave further evidence regarding her relationship with Mr C (which was occuring whilst he was with the Mother), which established that Mr C had lied to the Mother about his relationship with Ms D.

The Mother and Mr C then gave evidence that although they were in an open relationship, they were committed to each other and that their relationship could be characterised as the “primary relationship” compared to other “secondary relationships with other persons”.

The Decision

Judge Neville concluded that it was NOT in the best interests of the children to relocate to Queensland, noting the following:

  • The Mother and Mr C had made a significant error of judgment in attempting to conceal the true nature of their relationship from the Father and the Court. This showed a lack of insight in relation to the considerations that would be important in this case.
  • The Mother’s deception had compromised her evidence, leading to negative credit findings to made against her.
  • The children had clearly expressed that they did not wish to move.
  • The children did not refer to Mr C in their interviews with the family consultant which suggested that he was not a prominent figure in their lives.
  • The family consultant emphasised the need for the children to have stability. If the children relocated this stability would be dependant on the Mother and Mr C staying together, and the Mother shielding the children from the “extra-curricular” activities of their open relationship, nothing that Mr C at the time of the hearing was involved with at least 5 other women.
  • The children would be negatively impacted if they discovered the truth of the Mother and Mr C’s relationship.
  • If the relocation was permitted it would be impractical and costly for the Father to spend time with the children.
  • Although, there were some incidents of domestic violence, the Mother and Father have managed to work relatively co-operatively in their, albeit strained, co-parenting relationship.
  • The Mother had no friends or family, or support system in Queensland aside from Mr C and if the Mother and Mr C’s relationship failed the Mother and the Children would be effectively marooned in Queensland.

The Mother's Open Relationship

Judge Neville seemed to implicity disapprove of the concept of an open relationship. However, the judgment emphasises that it is not the court's role to pass moral judgment or criticise the personal relationships of the parties.

Regardless, Judge Neville found that the fact that the mother was in an open relationship was a matter which was highly relevant to the determination of the best interests of the children. In particular, it was noted that the open relationship may impact the Mother's ability to create a stable environment, in circumstances where she wished to the children to relocate away from their existing support networks, and it was found that the children would be negatively impacted if they discovered the truth of the open relationship.

In this case, the Mother's open relationship was a determining factor, although, Judge Neville had regard to a multitude of other factors to reach a decision that it was not in the best interest of the children to relocate.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.