Sex worker parents in the Family Court: sex workers first, parents second?

By Janelle Koh, Lawyer

In parenting matters, the occupation of a parent is not usually a contentious issue. If a party is gainfully employed, able to support the child or children on their wages, and their work can accommodate parenting arrangements, that is usually the end of the story. However, where a parent to the proceedings is employed as a sex worker, their occupation is often made subject to further scrutiny by the Court.

Such scrutiny often stems from ‘bad parent’ allegations made by a party against the sex worker parent, which suggest that their engagement in sex work should be viewed as a negative indicator of their capacity to parent. This overshadows the fact that many sex workers are parents, want to be good parents and engage in the work of their choice to support their children. As Tilly Lawless, a queer Australian sex worker writes in her autofiction novel, ‘Nothing But My Body”: “I don’t want my children to suffer, branded the offspring of a whore, as if this whore hasn’t worked every minute with their future in mind.”

How are sex workers treated by the Family Court?

How a person’s sex worker status is treated by the courts is subject to consideration under the best interests inquiry in the Family Law Act 1975 (Cth).

The Family Court can take into account a person’s status as a sex worker under s60CC(2)(b) and s 60CC(3)(g). Section 60CC(2)(b) requires the court to consider the need to protect the child (or children) from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(3)(g) asks the court additionally to consider the maturity, sex, lifestyle and background of either of the parents.

In the cases of Murray and Maloney, the Court ultimately declined to take the mother’s sex worker status into account under either s 60CC(2)(b) or (3)(g) when determining what was in the best interests of the child. These two cases are considered further below.

Consideration of sex worker status under 60CC(2) – Murray & Bussell [2010] FMCAFam 407

A case in which a parent’s employment as a sex worker was considered under s 60CC(2) was in Murray & Bussell, wherein the mother conceded to the court that she had engaged in sex work in her late teens and early adulthood. Significantly, at that time she had a serious drug addiction, had engaged in sex work to support her habit, and had been subject to a number of convictions on related bases. During this time, her two eldest sons were placed into the permanent care of a foster family because she could not, at that time, properly care for them. It was the father’s case that the mother was not capable of caring for their child, and he believed that she would revert to her previous lifestyle of excessive drug use and prostitution and would be as incapable of caring for their child as she had been for her two eldest sons.

In Bender FM’s consideration of the s60CC(2) factors, her Honour declined to give particular weight to the mother’s past employment as a sex worker, instead choosing to take into account her ‘troubled life’ in the totality of their circumstances. What was more significant in Bender FM’s view, was the mother’s ability to stay drug-free, and the impact of that on her capacity to parent the child of the parties.

Consideration of sex worker status under 60CC(3) – Maloney & Maloney [2011] FMCAfam 51 & Maloney & Maloney [2012] FamCAFC 16

In the case of Maloney, the parties met while the wife was working in a bar in the Philippines and was also working in a “parlour” around that time. The father knew of her employment as a sex worker at that time and did not object to her employment. Post-separation, the mother recommenced sex work in an effort to supplement her own income for a period of about 4 years. She ensured that the child was properly looked after while she worked.

Roberts FM considered the mother’s involvement in prostitution as a s 60CC(3)(g) factor. At paragraph [86]-[90] of his judgment, Roberts FM cited ‘concerns’ about her lifestyle at the time in which she engaged in prostitution. He stated at [87]:

While I note that in N v N Mullane J said that prostitution may well be legal and that “Australian society may well be more tolerant of the sex industry than in past times”, that does not mean that it is widely accepted by society or that it is in any way acceptable for children to be exposed to it.”

He then went on to suggest that the mother is “somewhat careless” about the child’s exposure to her work, and suggests that “at her age, the child must surely be wondering about, and asking questions about what she observes around her” [90]. He then concludes, “In the light of the above, I am left with the clear impression that the mother’s attitude to parental responsibility is somewhat below the Australian societal norm” [91].

Ultimately, Roberts FM found that the father offered a “more settled lifestyle” for the child, and that her best interests would be best served by her living with her father and having regular and substantial contact with her mother.

The mother appealed against the orders made by Roberts FM to the Full Court, alleging that it was not open to his Honour on the evidence before him to reach the conclusions he did about her lifestyle and any impact of that on the child. The Full Court (constituted by Strickland J) allowed the appeal, overturning Roberts FM’s decision on the basis that his judgment lacked adequate reasons.

Strickland J found that there was no evidence that the child was aware of her mother’s employment as a sex worker, nor that she had been in any way exposed to that activity, nor were there negative effects on the child as a result of her mother’s past activity. He also found that Robert FM’s comments about what was “widely accepted by society”, his reference to “the Australian societal norm” and what constituted a ‘settled lifestyle’ was made without any discernible reference to social research, and therefore it was not open to him to reach the conclusions he did about what Australian society did or did not condone. On the basis of these reasons, the Full Court remitted the matter for rehearing by a different Federal Magistrate.

Conclusion

The Court’s decisions in Murray and Maloney suggest that the Court has taken a balanced approach to the issue of sex work and will be loath to let it to affect the best interests inquiry unless and until any evidence of neglect or harm, stemming from exposure of the children to the parent’s engagement in sex work, can be properly borne out on the evidence. Similarly, they have been critical of arguments made (on both sides of the bench) that automatically equates one’s employment as a sex worker with that party having a non-child focused lifestyle. Such arguments are not viewed as appropriately made unless supported by evidence. And, as suggested by the Inner City Legal Centre, pursuing such claims could even constitute a misuse of process and a form of family violence.

One should therefor be cautious in making links between a sex worker parent’s occupation and what is in the best interests of the child. In the eyes of the Family Court, they should be treated as parents first, and employees second.

If you or anyone you know is seeking advice in relation to any parenting matter, or family law matter, come and see one of our lawyers at Carr & Co. Please contact us to arrange an appointment or call us on ph 9322 8000.

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