Wickham & Toledano
[2021] FedCFamC1F 50
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wickham & Toledano [2021] FedCFamC1F 50
File number(s): BRC 7205 of 2021 Judgment of: CAREW J Date of judgment: 15 September 2021 Catchwords: FAMILY LAW – CHILDREN – Interim Order – Where the biological and birth mother passed away after birth of twins – Where the applicants are a same sex couple – Where the respondent and the deceased birth mother were in a same sex relationship – Where the children have been living with the applicants since shortly after birth – Whether an interim order is to be made providing for parental responsibility and where the children are to live – Where there is evidence that raises concerns about the respondent’s functioning and how that may impact on her parenting capacity – Where respondent unable to spend time with the children due to COVID-19 border closures – Where there is a dispute about whether the respondent has standing to apply for a parenting order – Where the applicants are unable to obtain private health insurance or Medicare for the children – Where it is found to be in the best interests of the children for the applicants to have sole parental responsibility, that the children live with the applicants and that the order for the respondent to spend time with the children be suspended. Legislation: Family Law Act 1975 (Cth) Cases cited: Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
Mankiewicz and Anor & Swallow and Anor (2016) FLC 93-725
Marvel v Marvel (2010) 43 Fam LR 348
Division: Division 1 First Instance Number of paragraphs: 42 Date of hearing: 10 September 2021 Counsel for the Applicants: Mr Looney QC Solicitor for the Applicants: Page Provan Counsel for the Respondent: Ms Spain Solicitor for the Respondent: Shore Lawyers Counsel for the Independent Children’s Lawyer: Ms Dart Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 7205 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WICKHAM
First Applicant
MS PACE
Second Applicant
AND: MS TOLEDANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
15 SEPTEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The operation of paragraph 5 of the Order made by consent by the Honourable Justice Carew on 11 June 2021 be suspended.
2.The children, X born … 2021 and Y born … 2021 (“the children”) live with Ms Wickham and Ms Pace (“the applicants”).
3.The applicants have sole parental responsibility for the children.
4.The applicants have responsibility for all day to day decisions with respect to the children.
5.The applicants be at liberty to provide a copy of this Order to all service providers for the children (including but not limited to doctors, therapists, government departments and authorities, and private health insurers), with this Order being sufficient authority for them to engage with and consent to treatment, therapy, programs, service and the like for the children, and to receive such information from the service providers as a parent would ordinarily receive.
6.The respondent’s oral application for the provision of weekly progress reports and photographs of the children be dismissed.
7.The Independent Children’s Lawyer be granted leave pursuant to s 121 of the Family Law Act 1975 (Cth) to provide to the New South Wales Department of Communities and Justice, a copy of the following:
(a)Family report prepared by Ms B dated 8 September 2021; and
(b)Psychiatric assessment of the respondent prepared by Dr C dated 25 August 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), or to record a variation to the order pursuant to r 10.13 of the Rules.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wickham & Toledano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
X and Y are twins who were born in 2021. Tragically, their biological and birth mother, Ms D (“Ms D”), died a few days later. The children have been in the care of Ms D’s sister, Ms Wickham, and her fiancé Ms Pace (“the applicants”) since being discharged from hospital.
There is a dispute about the future care of the children between Ms D’s former partner, Ms Toledano (“the respondent”), and the applicants. The applicants live in Brisbane and the respondent lives in Sydney.
When this matter was first before me on 11 June 2021, I appointed an Independent Children’s Lawyer (“ICL”), ordered a family report, a psychiatric assessment of the respondent and adjourned the matter for an interim hearing on 10 September 2021. I also made an interim order that the respondent spend supervised time with the children at a contact centre in Brisbane for two hours per week. Only one such visit has been able to occur. The second scheduled visit was cancelled due to the applicants being unwell and then the subsequent visits were cancelled because of COVID-19 pandemic restrictions which resulted in Queensland closing its border to New South Wales.
At the interim hearing on 10 September 2021, a further adjournment of the interim hearing was agreed to by all parties and the ICL, and a further hearing has been listed for 17 December 2021. The matters about which a determination is sought at this point is confined to the following:
(a)Should the ‘spend time with’ order made on 8 June 2021 be discharged?
(b)Should an interim order be made granting the applicants sole parental responsibility?
(c)Should an interim order be made for the children to live with the applicants?
(d)Should various injunctions be granted including restraining the respondent from contacting the applicants?
The main reason for the adjournment of the interim hearing related to the late receipt of the expert reports and, in particular, a number of issues that the respondent has with the family report writer whom she contends exceeded her remit by contacting third parties and reviewing evidence that had not been disclosed in the proceedings. The applicants also had no opportunity to respond to a further affidavit filed by the respondent on the day of hearing. A number of procedural orders were made by consent on 10 September 2021 which will see the family report writer, Ms B, asked to produce an addendum to her family report and may result in the respondent seeking to exclude the family report and addendum on the next hearing date.
For the reasons which follow, I propose to order until further order, that the applicants have sole parental responsibility for the children, that the children live with them and that the order for the respondent to spend time with the children be suspended. I do not intend to grant the injunctions sought by the applicants. The ICL will be permitted to provide a copy of the family report and psychiatric assessment to the New South Wales Department of Communities and Justice (“the Department”). The applicants will not be required to provide weekly updates and photographs of the children to the respondent.
BACKGROUND
The applicants are a same sex couple who have been together for eight years. Ms Wickham is 40 years of age and Ms Pace is 33 years of age. As already noted, one of the applicants is the sister of the now deceased mother of the children, Ms D. The applicants have a son, E, who was born in 2019 and Ms Pace is due to give birth to her second child in late 2021. The applicants are said to have a close relationship with the maternal grandmother of the children who assists with their care.
The respondent is 40 years of age and lives in her own home in Sydney with her five year old daughter, F. F was born in 2016. There is no other parent in F’s life. The respondent operates her own company.
Ms D and the respondent met in 2020 via a dating App and quickly commenced a relationship resulting in the respondent proposing to Ms D in 2020. Ms D became pregnant via artificial conception procedures using her own stored embryos. It appears that the relationship between Ms D and the respondent was volatile from the start with a break up in about September 2020. There was a further separation in November 2020 after which Ms D returned to live in Brisbane. The parties reconciled in February 2021 but separated on a final basis on 4 April 2021. It seems common ground that leading up to the respondent excluding Ms D from her home on 4 April 2021, there were two altercations of a physical nature between the respondent and Ms D. Police were involved and mutual apprehended violence orders were taken out at the instigation of police.
The respondent was not initially informed of the birth of the children or of Ms D’s subsequent death. Apparently, Ms D’s intentions were made known to her family i.e. that she did not want the respondent to be involved with the children.
The respondent has only seen the children on one occasion, namely, 17 June 2021. The visit was uneventful.
Following the children’s three month paediatric assessment the applicants provided the respondent with a photo and progress report.
On 24 August 2021, the respondent was psychiatrically assessed by Dr C, a consultant psychiatrist. Dr C produced a report dated 25 August 2021 and noted that the respondent has a “longstanding history of emotional fragility, impulsive, turbulent and often brief relationships (at least three with partners who have allegedly been violent towards her) and has experienced numerous psychological/emotional decompensations to the point where she has required involuntary admissions (albeit brief) to public mental health facilities”.
Dr C opined that the respondent is “most likely suffering from … chronic complex
post-traumatic stress disorder … as a result of traumatic experiences in formative relationships in her late teens … and subsequently… A differential diagnosis … is a likely borderline personality disorder (cluster B personality traits)”.
In Dr C’s opinion, “there are a number of aspects of [the respondent’s] history which suggest a potential risk with regard to her capacity to parent effectively (particularly to be the sole parent of three children)”. It is further noted by Dr C that the respondent “has demonstrated a tendency over the last four years to involve herself hastily in impulsive and often ill-advised relationships … with a chaotic and often highly emotional domestic ambience, sudden separations and reconciliations and … physical aggression and violence … [the respondent] has for the most part coped poorly … (plunges of depressed mood, expressions of suicidality, two involuntary admissions to hospital in the last three years) and … presents a genuine danger for the psychological wellbeing of her daughter, F …unless … prepared to engage in regular psychological treatments”.
On various occasions commencing with 1 July 2021, a clinical social worker, Ms B, conducted interviews for a family report, which was filed on 8 September 2021.
Ms B opined that the applicants “have developed strong bonds with the twins, as has E” and that they “presented in a stable and functional manner, with a high level of understanding of the developmental needs of the twins …”.
In Ms B’s opinion, having regard to the applicants’ belief about the treatment Ms D endured at the hands of the respondent and her wishes that the respondent have no role in the future parenting of the children, “forcing contact between the two parties and/or forcing [the applicants] to relate with [the respondent] by having future involvement with the twins would place extraordinary stress on them and create a situation where they are constantly worried for the twins” and that the parties “have no relationship and no prospect of any positive relationship”.
If the children are to be raised by the applicants, Ms B opined that the respondent is “highly unlikely to ever accept that …” and “will need to be precluded from having any contact with [the applicants] and/or … demanding any information or photographs about them moving forward”.
Ms B considered that in such circumstances, the respondent “will likely need significant assistance from a grief counsellor”. The respondent has, according to Ms B “displayed on at least two occasions decompensations and need for psychiatric assessment”.
The following recommendations were made by Ms B and adopted by the ICL:
(a)The twins live with [the applicants] in the short and long-term.
(b)[The applicants] have short and long-term decision making in relation to the twins.
(c)[The respondent] have no decision making capacity, no care of and/or contact with respect to the twins going forward; no photographs nor information.
(d)[The respondent] embrace counselling with an experienced grief counsellor, either a psychologist or a psychiatrist, to assist her to let go of the twins and move forward in her life.
(e)[The respondent] also preferably embrace counselling with respect to her role in future relationships and the impact on her parenting of her daughter F in this regard.
(f)[The respondent] be precluded from making any contact whatsoever with the biological family of the twins particularly the carers [the applicants].
APPLICABLE LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what ‘parenting order’ is proper,[1] but such consideration will focus in particular on issues that will be determinative at an interim hearing. [2] The Court is not required to make findings of fact on every factual dispute raised by the parties.[3] The paramount issue for the Court is to determine what is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on each and every factual dispute.[4]
[1] See: Family Law Act 1975 (Cth), s 65D.
[2] Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637 (“Banks & Banks”).
[3]Baghti & Baghti [2015] FamCAFC 71.
[4] M & M (1988) 166 CLR 69 at 76.
As the Full Court of the Family Court of Australia (“the Full Court”) observed in Banks & Banks[5] at 80,116:
48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis in original)
[5] (n 5).
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons; and
(c)The allocation of parental responsibility.
Neither of the applicants are parents of the children but there is no issue taken as to their standing to bring the application. There is a dispute about whether or not the respondent is a parent. Section 60H of the Act deals with the legal consequences for certain children born as a result of artificial conception procedures. Whether or not the respondent is able to satisfy the requirements of s 60H, is a question of fact yet to be determined. If the respondent is not a parent, s 65C(c) relevantly provides that a parenting order may be applied for by “any other person concerned with the care, welfare or development of the child”. It seems to me that, the standing of at least the respondent to seek a parenting order may be an issue requiring a discrete hearing.
In Mankiewicz and Anor & Swallow and Anor[6] the Full Court (Ryan and Austin JJ) said at 81,673:
10. … Applicants who only fall within s 65C(c)have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.
[6] (2016) FLC 93-725.
Murphy J writing separately said at 81,681:
80. The terms of s 65C are clear and unambiguous. Every applicant for parenting orders must “establish facts which would permit them to apply for a parenting order”. Conversely, no applicant for a parenting order has “the right to seek substantive relief” unless and until they “establish facts which would permit them to apply for a parenting order”. The section provides a pre-condition to the invoking of the court’s undoubted jurisdiction to make parenting orders in respect of children, namely that those seeking to invoke that jurisdiction have a sufficient nexus with the children in order to found (sic) the court’s jurisdiction and render it within constitutional constraints.
81. A different factual pre-condition is specified in each of s 65C’s sub-paragraphs. The circumstance that facts which satisfy s 65C(c) differ from facts which satisfy s 65C(a), (b) or (ba) does not result in any additional requirement attending s 65C(c). The plain terms of the section underpin the Full Court’s rejection of the contention that s 65C involves a “threshold test” in the case of a non-parent and the rejection of the notion that the section imports “a hierarchy of applicants some of whose applications should receive less or no weight than others”.
(Footnotes omitted) (Emphasis in original)
Part VII of the Act is largely focussed on a child’s rights to know and be cared for by parents. However, the objects of the Act include “ensuring that children receive adequate and proper parenting to help them achieve their full potential” (s 60B(1)(c)) and the principles underlying the objects include a child’s right “to spend time on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)” (s 60B(2)(b)).
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
In Marvel v Marvel,[7] the Full Court said at 375:
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.
[7] (2010) 43 Fam LR 348.
DISCUSSION
The ICL supports the making of the orders sought by the applicants and seeks permission to provide a copy of the expert reports to the Department in circumstances where concerns are raised for the welfare of the respondent’s child, F.
The ICL notes Ms B’s positive assessment of the children’s current placement with the applicants and is concerned that should the children require emergency surgery for any reason, there may be delay because of the absence of an order granting the applicants parental responsibility, and the absence of any communication between the parties. Further, the ICL submits that in the absence of a practical ability to spend time with the children because of the current COVID-19 restrictions, the order should be discharged.
The applicants adopt the submissions made by the ICL and submit that the fact that the applicants cannot obtain private health insurance or Medicare for the children is a sufficient reason, of itself, for a parental responsibility order to be made in their favour. Further, the applicants note there are factual issues yet to be determined about the standing of the respondent to apply for a parenting order. It is argued that an order for the children to live with them simply reflects the current arrangement. Further, that a continuation of the ‘spend time with’ order, at this time, would really only be for the benefit of the respondent, the children being too young to be aware of the respondent. The applicants submit that the injunctions, as recommended by Ms B and the ICL, should be granted, in circumstances where Ms B assessed the respondent to lack a child focus perspective and to demonstrate a sense of entitlement.
The respondent argues that there should be no change to the current order in circumstances where the applicants have been able to obtain medical attention for the children, despite not having parental responsibility. Indeed, it is argued that the applicants were able to have the children discharged into their care by the hospital and have already obtained medical attention for the children including childhood vaccinations, despite not having parental responsibility.
Further, the respondent submits that in the event the COVID-19 restrictions are removed before the next hearing, the respondent should be at liberty to take advantage of the current order to spend supervised time with the children.
The respondent intends to challenge the family report in a number of respects, particularly where Ms B has had regard to material not provided to her by the parties jointly and not disclosed in the proceedings.
In relation to the injunctions, it is submitted by the respondent, that there is simply no evidence to justify the granting of any injunctions. There is, for instance, no evidence that the respondent has ever attempted to enter the applicants’ residence or place of employment.
The respondent opposes the provision of the expert reports at this stage of the proceedings, arguing that it would be premature to do so, in circumstances where the respondent has not had an opportunity to respond to the family report, which was only received after hours on 8 September 2021. In relation to Dr C’s report, it is argued that he refers to “potential” risk not current risk.
CONCLUSION
In my view the orders sought by the applicants (other than the injunctions) are justified (although as a further interim hearing is listed for 17 December 2021 I propose to suspend rather than discharge the ‘spend time with’ order) for the following reasons:
(a)As the full time carers for the children at this time, the applicants should be able to obtain private health insurance and Medicare for the children which it seems they cannot do without having an order for parental responsibility;
(b)The children are currently being well cared for by the applicants according to the assessment of Ms B and an order that the children live with the applicants reflects the situation that has been in place since shortly after the children’s birth;
(c)The respondent has no current relationship with the children and has seen them on only one occasion since their birth; and
(d)Given the ages of the children, they would not have any awareness of the respondent.
I do not intend to grant the injunctions sought. It is conceded by the ICL and the applicants that the evidence does not support the granting of the injunctions at this time, although they were recommended by Ms B. In my view, Ms B’s recommendation for injunctions restraining the respondent from having any contact or communication with the applicants arose in the context of a final order which might provide for the children to live with the applicants. If that were to be the outcome, Ms B opined that the respondent “is highly unlikely to ever accept that the children would be placed into a long-term care and guardianship of [Ms D’s] family” and the respondent “will need to be precluded from having any contact with [the applicants] … and/or demanding any information or photographs about them moving forward”.
As to the respondent’s oral application to be provided with weekly progress reports and photographs, I do not propose to make such an order. I accept the applicants’ submission that such an order cannot be said to be in the children’s best interests given their ages. Further, Ms B opines that any contact with the respondent exacerbates the stress experienced by the applicants who are not only caring for the children, but are in the midst of grieving the death of Ms D and preparing for the birth of their second child. In any event, I note that the respondent recently received a report about the children’s progress after they were reviewed by their paediatrician and also received a photograph.
Finally, while the respondent takes issue with some of the content and opinions contained in the expert reports, there are nevertheless concerns raised about the respondent’s functioning and how that may impact on her parenting capacity with her daughter. It is appropriate that such matters be brought to the attention of child protection authorities.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 15 September 2021