PICCOLO and PICCOLO - [2017] FCWA 167

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PICCOLO and PICCOLO [2017] FCWA 167

CORAM: O'BRIEN J

HEARD: 19 - 23 JUNE 2017 AND WRITTEN SUBMISSIONS
FINAL SUBMISSIONS RECEIVED 7 AUGUST 2017

DELIVERED : 28 NOVEMBER 2017

FILE NO/S: PTW 2638 of 2014

BETWEEN: MS PICCOLO
Applicant
AND
MR PICCOLO
Respondent

Catchwords:

PARENTING PROCEEDINGS - Consideration of the presumption of equal shared parental responsibility - Where the child has lived in approximately equal care of the parties, but neither proposes that continue - Where an equal time arrangement would in any event be impracticable - Where there is conflict between the parties arising to a significant degree from the wife's anger and her reaction to the husband's new relationship - Where the child has been exposed to that conflict - Where the husband will support the child's relationship with the wife, but the wife will not support the child's relationship with the husband - Turns on own facts.

DISPUTE AS TO EMBRYOS - Jurisdiction to make orders - When the embryos were created and remain stored in Canada - Where the parties entered into an agreement binding under Canadian law which contemplated that upon separation one of them would assume sole ownership of any remaining embryos - Where the embryos contain the husband's genetic material but not the wife's - Where the husband seeks to assume sole ownership of the embryos and the wife does not.

Legislation:

Family Law Act 1975 (Cth) s 4, s 60CC, s 61B, s 61DA, s 65DAA
Artificial Conception Act 1985 (WA) s 6
Evidence Act 1906 (WA) s 7
Interpretation Act 1984 (WA) s 5, s 114

Category: Reportable

Representation:

Counsel:

Applicant: Mr Hynes
Respondent: Mr Hedges

Solicitors:

Applicant: Martin Hynes Lawyers
Respondent: Kim Wilson & Co

Case(s) referred to in judgment(s):

Badawi & Badawi (Costs) [2017] FamCAFC 196
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
G and G [2007] FCWA 80
Insurance Australia Ltd (t/a NRMA Insurance) v Milton (No 2) [2016] NSWCA 173
Re C and D (1988) FLC 92-815

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1[Ms Piccolo] (“the wife”) and [Mr Piccolo] (“the husband”) met in 2006. They were married in 2010. After their attempts to start a family were unsuccessful, they sought to proceed by way of a surrogacy process in Canada.
2Arrangements were made for eggs donated by [Ms B], a Canadian resident, to be fertilised with the husband’s sperm. By that process, six embryos were created. In October 2011 two of those embryos were transferred to [Ms L], also a Canadian resident, who was the gestational carrier chosen by the parties. Those embryos succumbed, and in January 2012 two further embryos were transferred to Ms L.
3While one of those embryos succumbed, the other embryo thrived, resulting in a successful pregnancy. [In] 2012 [Child A] was born.
4The remaining two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PICCOLO and PICCOLO

Details

AGLC: Piccolo and Piccolo [2017] FCWA 167
Case: [2017] FCWA 167
Decision Date: 28 NOVEMBER 2017

CaseChat Overview and Summary

The case of PICCOLO and PICCOLO involved a dispute between the parents over the parenting arrangements for their child, as well as the ownership of embryos created during their marriage. The matter was heard in the Family Court of Australia. The central issue was whether the presumption of equal shared parental responsibility should apply, considering the child had lived in equal care of both parents but neither wished to continue this arrangement. Additionally, the court had to determine the practicalities of implementing an equal time arrangement given the conflict between the parents, particularly the wife's anger towards the husband's new relationship.

The court addressed several legal issues, including the applicability of the presumption of equal shared parental responsibility in the face of ongoing parental conflict and the impracticability of equal time arrangements. The court also considered whether it had jurisdiction to make orders regarding the embryos stored in Canada, given the existence of a binding agreement under Canadian law regarding their ownership upon separation. The court needed to weigh the husband's request to assume sole ownership of the embryos against the wife's opposition, as well as the implications of the child's potential future relationship with each parent.

The court concluded that, while the child had lived in approximately equal care of both parents, the ongoing conflict and exposure of the child to it made an equal shared parental responsibility arrangement impractical. Instead, the court opted for a parenting order that provided for the child's primary residence with the husband, with specific arrangements to manage contact and minimise exposure to conflict. Regarding the embryos, the court found it had no jurisdiction to make orders affecting their ownership, as the matter fell under Canadian law and the existing agreement between the parties.

The final orders of the court provided for the child's primary residence with the husband, along with detailed arrangements for contact and communication with the wife. The court made no orders regarding the ownership of the embryos, deferring to the jurisdiction and laws of Canada.

Orders