Wickham & Toledano (No 2)
[2022] FedCFamC1F 32
•3 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wickham & Toledano (No 2) [2022] FedCFamC1F 32
File number: BRC 7205 of 2021 Judgment of: CAREW J Date of judgment: 3 February 2022 Catchwords: FAMILY LAW – PARENTAGE – Where the biological and birth mother passed away after the birth of the children – Whether the respondent is a parent – Consideration of s 60H of the Family Law Act 1975 (Cth) – Whether the relevant time for determination as to whether the woman and the other intended parent were in a de facto relationship was the time of carrying out of an artificial conception procedure or at the time the child was born.
FAMILY LAW – DE FACTO RELATIONSHIP – SAME SEX – Whether the biological and birth mother and the respondent were in a de facto relationship at the time the artificial conception procedure was carried out – Where the relationship was short and volatile – Where commitment to the relationship waxed and waned.
FAMILY LAW – PARENTAGE – Whether the respondent is a person concerned with the care, welfare or development of the children – Where the respondent was coercive and controlling – Where the respondent has no biological connection to or relationship with the children – Where the respondent’s focus has been on her perceived “rights”.
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Revised Supplementary Explanatory Memorandum for the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth)
Cases cited: Freeman & Bowman [2015] FamCA 141
Jonah & White (2012) FLC 93-522
Keaton & Aldridge (2009) 223 FLR 158
Lynam v Director-General of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551
Number of paragraphs: 86 Date of hearing: 20 – 22 December 2021 Place: Brisbane Counsel for the First and Second Applicants: Mr Looney QC Solicitor for the First and Second Applicants: Page Provan Counsel for the Respondent: Mr Selfridge 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:
AND:
MS WICKHAM
First ApplicantMS PACE
Second ApplicantAND: MS TOLEDANO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
3 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Response filed by the respondent on the 10 June 2021 be dismissed.
2.The Initiating Application (final orders) filed on 2 June 2021 be listed for final hearing on 12 May 2022 at 10.00 am.
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) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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:
These proceedings concern twins, X and Y, (“the children”) who were born in 2021. Since shortly after the tragic death of their biological and birth mother, Ms D, in 2021, the children have been in the care of Ms D’s sister, Ms Wickham, and her fiancé Ms Pace (“the applicants”). The applicants want the children to remain with them in Brisbane.
Their application is opposed by Ms Toledano (“the respondent”) who contends that the children should live with her in Sydney.
The respondent’s standing to apply for a parenting order is the only issue for determination before me at this time.
WHO CAN APPLY FOR A PARENTING ORDER?
Section 65C of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
A parenting order in relation to a child may be applied for by:
(a) either … of the child’s parents; or
…
(c) any other person concerned with the care, welfare or development of the child.
In determining whether the respondent is a parent, regard must be had to s 60H of the Act which relevantly provides:
(1)If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was … a de facto partner of, another person (the other intended parent); and
(b) either:
(i)the woman and the other intended parent consented to the carrying out of the procedure, …
(ii) …
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) …
ISSUES
The parties agree that the determination of whether or not the respondent has standing to apply for a parenting order requires consideration of the following questions:
(1)Whether on the proper construction of s 60H(1)(a) of the Act, the relevant time for the determination as to whether the woman and the other intended parent were in a de facto relationship was either:
(a)the time of carrying out of an artificial conception procedure that resulted in the birth of the relevant child; or
(b)the time of the birth of the relevant child;
(2)Whether the artificial conception procedure by which the children were conceived[1] was carried out, or in the alternative the children were born, at a time when the respondent was a de facto partner of Ms D such that the children are children of the respondent pursuant to s 60H of the Act;
(3)Whether the respondent is a person concerned with the care, welfare or development of the children within the meaning of that expression in s 65C(c) of the Act.
[1] While the parties drafted the issues for determination, it is common ground that it is not the conception i.e. the fertilisation of an egg from which an embryo is created, but rather the implantation of the embryos that is to be considered.
Before considering the identified questions it may be helpful to provide some brief background to the dispute.
BRIEF BACKGROUND
In 2016 Ms D[2] stored embryos created with her own genetic material and sperm donated from an anonymous sperm donor.
[2] For ease of reference and without intending any disrespect I will hereafter refer to Ms D as “Ms D” in these Reasons.
Ms D and the respondent met via a same sex online dating site on 1 June 2020. Their relationship ended on a final basis on 4 April 2021, at which time Ms D moved to Brisbane.
Ms D underwent an artificial insemination procedure on 24 September 2020 to which the respondent consented. The definition of ‘artificial conception procedure’ includes the implantation of an embryo in the body of the woman.[3]
[3] Family Law Act 1975 (Cth), s 4.
Ms D gave birth to X and Y in 2021 and passed away in 2021. X and Y were Ms D’s only children.
On 7 June 2021, the children were discharged into the care of the applicants by the hospital at which they had been born. The applicants are a same sex couple who are engaged to be married. Ms Wickham (Ms D’s sister) is 40 years of age. Ms Pace is 34 years of age. Ms Wickham and Ms Pace have two children, E born in 2019 and Z born in 2021. There was no objection to the second applicant, Ms Pace, being excused from attendance at the trial given that she had recently given birth.
The respondent is 41 years of age. She has one child, F, born in 2016. The respondent has been married a number of times and while in a relationship with Ms D was married to Ms H although they were not living together. The respondent and Ms H divorced on in or about late 2020.
The respondent became aware of the birth of X and Y and the death of Ms D on 7 June 2021 when served with the applicants’ application.
An interim order was made by consent on 11 June 2021 providing for the respondent to spend weekly supervised time with the children at a contact centre. Only one visit was able to occur before the COVID-19 pandemic restrictions intervened and further visits were not possible as the border between Queensland and New South Wales was closed. The ‘spend time’ with order was suspended by order on 15 September 2021.
To date, the applicants have incurred legal fees of $149,864 and the respondent has incurred legal fees of $65,000.
PROPER CONSTRUCTION – TEMPORAL CONNECTION TO BIRTH OR CONCEPTION PROCEDURE?
All parties submitted that on the proper construction of s 60H(1)(a), the relevant time for the determination as to whether the woman and the other intended parent were in a de facto relationship is the time of carrying out of an artificial conception procedure rather than at the time the child was born. While arguably either construction could be open on a plain reading of the section, I note that the Revised Supplementary Explanatory Memorandum for the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) explained the intention of the amendments to the Act in the following terms:
77.These changes will mean that section 60H(1) applies, as well as to married couples, to current or former de facto partners who are of the same-sex and to current or former de facto partners who are of different sexes where children are born as a result of artificial conception procedures. This would mean that female same-sex de facto couples would be recognised as the parents of a child born where the couple consent to the artificial conception procedure and one of them is the birth mother...
(Emphasis added)
The reference to “former de facto partners” in my view clarifies that the intention of the legislature is to recognise de facto partners as parents whether or not they were still in a de facto relationship at the date the child was born.
While Hogan J in Freeman & Bowman[4] posed the question for determination as – whether at the time the child was born the parties were in a de facto relationship? – a proper reading of the decision, which was delivered ex tempore, demonstrates that the focus of the enquiry was on the nature of the relationship not the temporal connection. The proceedings before Hogan J were undefended and involved an application for a declaration as to parentage.
[4] [2015] FamCA 141 at [6].
I agree with the parties’ submissions that on the proper construction of s 60H(1), the relevant time for the determination as to whether the woman and the other intended parent were in a de facto relationship is at the time of carrying out of the artificial conception procedure which resulted in the birth of a child.[5]
WAS THE ARTIFICIAL CONCEPTION PROCEDURE CARRIED OUT AT A TIME WHEN MS D AND THE RESPONDENT WERE IN A DE FACTO RELATIONSHIP?
[5] See also Keaton & Aldridge (2009) 223 FLR 158 per Pascoe CFM.
Whether or not Ms D and the respondent lived in a de facto relationship at the time the artificial conception procedure was carried out is a question of fact to be determined by the Court.[6] The perception by the parties of their relationship is a relevant matter but not determinative.[7]
[6] Sinclair & Whittaker (2013) FLC 93-551 at [65] (“Sinclair”).
[7] Ibid.
Different terms have been fashioned to describe the nature of the relationship necessary to found a de facto relationship e.g. ‘the manifestation of coupledom’ or ‘the merger of two individual lives into life as a couple’[8] but the Full Court in Sinclair[9] said:
Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
[8] Jonah & White (2012) FLC 93-522 (see 86, 681 of Full Court judgment quoting Murphy J as the trial judge).
[9] Sinclair at [94].
The Full Court in Sinclair[10] also adopted the observations of Fitzgerald J in Lynam v
Director-General of Social Security[11] who said:Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
[10] Ibid at [55].
[11] (1983) 52 ALR 128 p.131.
In this jurisdiction, ‘de facto relationship’ is defined in s 4AA of the Act which relevantly provides:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
…
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
Credit
In my view, it is rarely necessary to make general findings of credit about a witness. In my experience, most people do their best to tell the truth and inconsistencies in their evidence more often arise out of a different perception or memory of something rather than an intention to lie.
This case is different. The respondent was such an unimpressive witness who took any opportunity to obfuscate, evade answering questions, and contradict her own evidence that I place very little weight on her evidence where it is not corroborated by an independent source.
By way of example:
(a)The respondent contended that Ms D did not believe the respondent’s admitted lies about having brain cancer. I completely reject that contention. I have no doubt, after listening to the recording of the conversation between the respondent and Ms D on 2 December 2020, that Ms D believed the web of lies spun by the respondent and agreed to attend couples counselling with the respondent because of the respondent’s manipulative behaviour in causing Ms D to feel sorry for her;
(b)The respondent denied that her lies were intended to be manipulative. I am in no doubt that manipulation was most certainly was her intention. She wanted Ms D to remain in a relationship with her at the times she told the lies and used the most manipulative means possible to pressure Ms D to return to her;
(c)The respondent contended that her lies were spun out of a concern for Ms D and the unborn children. I completely reject that contention. Her concern was purely self-interest. How the respondent could maintain that untruth after the recorded conversations were played during the hearing beggars belief;
(d)The respondent sought to contradict her own affidavit when she realised her reference to cohabitation and living together in different contexts did not help her case;
(e)The respondent contended that the lies about her serious health condition were not discussed during any of their conversations after December 2020 and in particular during their weekends together in early 2021. I reject that contention. It is completely unbelievable that Ms D would not have enquired about the respondent’s health. Indeed she wrote to a friend on 28 February 2021 stating that the respondent had just finished 12 weeks chemotherapy and radiation. The only likely source for that lie was the respondent.
My findings are made notwithstanding that there is only one surviving party to the relationship between Ms D and the respondent. The applicants have done their best to piece together the relevant evidence from information obtained from documents created by Ms D, credit card statements, toll records relating to travel, emails, text messages and social media entries. Obviously, information sourced from Ms D cannot be tested under cross-examination. That would generally make it difficult to place much weight on such evidence where it is contentious. However, given my findings in relation to the respondent’s credibility I feel less constrained than I might otherwise have been in accepting evidence emanating from Ms D’s untested evidence.
I turn now to consider the particular indicia of the relationship between the respondent and Ms D that will inform my determination as to the nature of that relationship.
Duration of the relationship
As already noted Ms D and the respondent ‘met’ online on 1 June 2020. They had their first date on 8 June 2020 and their second date on 26 June 2020.
They became engaged on 8 September 2020. The respondent ended the relationship on 11 September 2020. Ms D and the respondent reconciled on 19 September 2020.
On 5 October 2020 the respondent again ended the relationship and she and Ms D did not see each other again until 17 October 2020.
The respondent again ended the relationship on 6 November 2020 but Ms D and the respondent remained living under the one roof until Ms D left the respondent’s home on 15 November 2020. On 22 November 2020 Ms D refers to there having been five or six break ups by this time.
On 2 December 2020, after an appallingly manipulative telephone conversation, during which the respondent told Ms D she had brain cancer, Ms D reluctantly agreed to attend couples counselling with the respondent after the respondent repeatedly pleaded with her to resume their relationship. On 5 December 2020 Ms D left Sydney for Brisbane.
On 15 December 2020 the respondent informed Ms D that she will be enforcing parental rights over the yet to be born children.
Ms D agreed to reconcile with the respondent on 31 December 2020 and they spent a weekend together on 8 – 10 January 2021. Ms D and the respondent attended further couples counselling on 21 January 2021 and spent another weekend together on 30 January – 1 February 2021. They spent 5 – 7 February 2021 together and attended further counselling on 10 February 2021.
The respondent ended the relationship again on 10 February 2021. On 24 February 2021 the respondent travelled to Brisbane and Ms D returned to Sydney with the respondent on 26 February 2021. In a message to a friend written on 28 February 2021, Ms D said she was back in a relationship with the respondent in the following context:
[The respondent] has just finished 12 weeks of chemotherapy and radiation for her frontal lobe tumour and we’ve been going through intense counseling to understand everything that went wrong previously.
(As per the original)
This information was of course untrue and part of the respondent’s web of lies.
The final end to the relationship occurred on 4 April 2021.
On any view of the evidence, the entire relationship between the respondent and Ms D was of short duration and up to the relevant date, namely, 24 September 2020 the relationship was at most, two or three months in duration.
Nature and extent of their common residence
In the period 1 June 2020 to 24 September 2020, the respondent and Ms D spent at most 42 out of 115 nights together. Ms D maintained her own residence throughout that time. She had a cat to which the respondent was allergic. The respondent never stayed at Ms D’s home.
Ms D did not keep her personal items at the respondent’s home e.g. clothing, until sometime after 28 July 2020 when the respondent made some room in a closet for Ms D’s things. Ms D continued to refer to her residence as “home” until at least September 2020. The respondent and Ms D were not in a relationship between 11 September and 19 September 2020.
Ms D did not advertise her residence for rent until 25 September 2020.
Whether a sexual relationship existed
It is common ground that when the respondent and Ms D were together they had a sexual relationship.
Degree of financial dependence or interdependence and any arrangements for financial support between them
The respondent and Ms D were not financially dependent on each other. They had no joint accounts during the period up to 24 September 2020 and no financial transactions other than the respondent buying meals when she and Ms D went out and Ms D buying some groceries when she stayed over at the respondent’s residence.
The ownership, use and acquisition of their property
The respondent and Ms D did not own or acquire any property together. Each of them owned their own residence and the only use made by Ms D of the respondent’s residence was when she stayed there.
The degree of mutual commitment to a shared life
An astonishingly short time after they met, the respondent and Ms D made plans for a life together, including having children. They became engaged on 8 September 2020 but the respondent ended the relationship days later. They did not reconcile until 19 September 2020, only five days before the artificial conception procedure.
Whether the relationship was registered under a prescribed law of a State
The relationship was not registered.
The care and support of children
The respondent’s child, F, attended daycare five days per week. There is no evidence that Ms D provided any care or support for F.
The reputation and public aspects of the relationship
The respondent and Ms D informed members of their respective families of their relationship and engagement. There were posts made on social media about their engagement.
CONCLUSION ON WHETHER THE RESPONDENT AND MS D WERE IN A RELATIONSHIP AT THE TIME OF THE ARTIFICIAL CONCEPTION PROCEDURE
On any view of it, the relationship between the respondent and Ms D was short. At times they expressed an intention to share a life together and to have children. They became engaged but separated shortly thereafter. It was an intense and volatile relationship. They maintained their own residences despite Ms D spending time, including overnights, at the respondent’s residence. They maintained their financial independence and had no arrangements for financial support between them. They owned no property together. They had no joint accounts. The commitment to the relationship waxed and waned. They informed family members of the relationship and of its demise.
It could not be said that as at 24 September 2020, having regard to all the circumstances of their relationship, that they had a relationship as a couple living together on a genuine domestic basis.
Accordingly, I find that the respondent is not a parent within the meaning of the Act.
IS THE RESPONDENT A PERSON CONCERNED WITH THE CARE, WELFARE OR DEVELOPMENT OF THE CHILDREN WITHIN THE MEANING OF THAT EXPRESSION IN S 65C(C) OF THE ACT?
The respondent contends that the following matters are relevant to the determination of this issue:
(a)The nature and extent of the relationship between the respondent and Ms D;
(b)The absence of a bond between the children and the respondent is not as a consequence of any lack of endeavour on her part;
(c)The order sought in her Response should be seen in context i.e. she was not told of the birth of the children or the death of Ms D until served with the applicants’ Initiating Application;
(d)The respondent has “not wavered in seeking to bring her application to be recognised as the other intended parent” despite “extreme opposition”;
(e)The respondent’s statements indicating her wish and intention not to be involved with the children in the future should be considered in the context of her history of saying “a lot of things but never means them/follows through on same”;
(f)Likewise, her statements and conduct during periods of separation i.e. she did not mean what she said;
(g)“Notwithstanding the Respondent’s construed impulsivity at times, there is also another side to her wherein she has demonstrated in her words and actions that she can also be very loving, caring and nurturing”.
The nature and extent of the relationship between the respondent and Ms D has already been considered to some degree earlier in these reasons. After the artificial conception procedure, Ms D’s apartment was listed for rent and rented on 1 October 2020. The respondent again ended the relationship on 5 October 2020 and did not see Ms D until 17 October 2020. Ms D moved into the respondent’s residence with half her furniture on 29 October 2020. The respondent again ended the relationship on 6 November 2020 but she nevertheless accompanied Ms D to see the obstetrician on 10 November 2020. Ms D moved out of the respondent’s residence on 15 November 2020.
On 2 December 2020 the respondent told Ms D that she had brain cancer and pleaded with her to resume the relationship. The recorded conversation between Ms D and the respondent was an extraordinarily deceitful exercise by the respondent. She pretended to be driving her car while bleeding and adjusted her voice to indicate her failing condition. She was relentless in her manipulation of Ms D and kept up the pressure until Ms D agreed to attend couples counselling with her. They attended counselling on 4 December 2020.
Ms D left Sydney for Brisbane on 5 December 2020.
Then followed conversations and messages in which the respondent indicated to Ms D that she was going to commit suicide.
The respondent and Ms D (by phone) attended further counselling on 15 December 2020 during which the respondent said that she would be enforcing her “parental rights” and would leave further communication to her solicitor. The respondent followed up those statements with a voice mail message to Ms D confirming her intention to seek “50 fucking percent custody” and described Ms D as a “pathetic piece of shit lying cunt”. In texts also sent on 15 December 2020 the respondent stated to Ms D:
You know what you really are the biggest cunt to walk the earth. Ill be fighting for my kids
…
Ill be getting 50% custody of those kids
(As per the original)
On 31 December 2020 Ms D agreed to reconcile with the respondent. They spent a few weekends together in late January and early February 2021. They again attended couples counselling on 21 January 2021 and 10 February 2021.
On 10 February 2021, the respondent sent a series of texts to Ms D in which she said:
…
Keep the kids Wikham – [I’m] out
…
Lets part
Ive had enough now
(As per the original)
On 11 February 2021 the respondent left a voice mail message for Ms D in which she said that if Ms D did not call back in five minutes she would seek half custody of the children because “I don’t want them being raised by that psychopath you call family”.
On 19 February 2021 the respondent sent a further series of text messages in which she said:
I dont want this
So lets agree to disagree and start our lives again seperateny
…
Blocking you now
(As per the original)
A baby shower was arranged for 20 February 2021 and the respondent had organised an elaborate balloon display to be delivered to Ms D’s home. As a result of the respondent feeling “disrespected” she called Ms D and demanded that the gift be destroyed immediately and threatened that if Ms D did not send her a photograph of the destroyed gift she would take an axe to the nursery furniture (which had been acquired for the yet to be born children and was at the respondent’s residence). The recorded conversation again demonstrates the extraordinary abuse and manipulation of Ms D by the respondent. Ms D was by then five months pregnant and her distress during the conversation was palpable. The respondent repeatedly swore at Ms D, calling her a “show pony cunt”. She insisted that Ms D burst the balloons and then asked her whether she was coming back to Sydney or staying in “fuckin’ Queensland”. Ms D repeatedly said she had had enough and was staying in Brisbane.
When cross-examined about this conversation the following exchange took place between Queen’s Counsel for the applicants and the respondent:
[QUEEN’S COUNSEL FOR THE APPLICANTS]: … And this was a demonstration of your care for her and the children, or at least of the children? You could hear the distress in her voice, couldn’t you?
[RESPONDENT]: But you can’t hear the distress in mine?
[QUEEN’S COUNSEL FOR THE APPLICANTS]: Were you pregnant at the time?
[RESPONDENT]: No, I wasn’t - - -
[QUEEN’S COUNSEL FOR THE APPLICANTS]: Did you know she was?
[RESPONDENT]: - - - but that doesn’t take away from my distress.
[QUEEN’S COUNSEL FOR THE APPLICANTS]: Did you know she was?
[RESPONDENT]: Yes, I was fully aware that she was.
(Transcript 20 December 2021, p.93 lines 4–12)
Even after all that has happened, the respondent was focussed entirely on herself.
The respondent travelled to Brisbane on 24 February 2021 and Ms D returned to Sydney with the respondent on 26 February 2021.
On 28 February 2021, Ms D communicated with a friend about the resumption of her relationship with the respondent and stated:
[The respondent] has just finished 12 weeks of chemotherapy and radiation for her frontal lobe tumour and we've been going through intense counseling to understand everything that went wrong previously.
(As per the original)
On 3 April 2021 the respondent prepared a handwritten note requiring Ms D to reimburse her for the cost of the two cots, two mattresses, a change table and chest of drawers and to pay her $250 per week rent and half of the bills on a week by week basis.
Also on this date and again on 4 April 2021, each of the respondent and Ms D recorded conversations they had with each other. By this time Ms D was seven months pregnant. She and the respondent engaged in ongoing arguments about their relationship over those two days. Ms D repeatedly expressed her doubts about the relationship given the “constant instability” and the “constant fighting”. The respondent told Ms D that she was not “going to allow” Ms D to return to Brisbane. She told Ms D that she “fucking detest[s]” Ms D’s family. At one point she said:
I hate your family, they’re a bunch of fucking arseholes
The respondent’s daughter F was present throughout the very distressing exchanges. Ms D repeatedly expressed concern about F. On occasion the respondent directly involved F in the dispute saying at one point to F – “she doesn’t want you to be their brother and sister”. The abuse of Ms D by the respondent just went on and on and on, notwithstanding Ms D’s repeated pleas for the respondent to stop and her statements that she was not well. It is apparent that in the week before these exchanges, the respondent had wanted an agreement in place so she was not “condemned” to pay maintenance for the children. Ms D said she never wanted money from the respondent. The respondent repeatedly stated that Ms D never wanted her to be a parent to the children – “you kept on saying that they’re not my kids” and “you wanted to be a single mummy” and “you don’t want me on the birth certificate okay”. Ms D stated that the relationship had to always be on the respondent’s terms. The respondent repeatedly spoke about her “rights”. She said that if she was not on the birth certificate she did not want to be involved with the children – “I said to you I wouldn’t be raising kids and paying for kids [if] they’re in fucking Brisbane” and “no one in their right mind would be happy to raise children when they’re in another State”.
At that time, the respondent had packed up boxes of Ms D’s possessions including those of the unborn children. At one point, the respondent said – “I don’t want anything to do with those kids”.
There was also a physical altercation between the respondent and Ms D when the respondent took Ms D’s phone and put it down a street drain. Police were involved and took out mutual protection orders against each party. The protection orders did not prevent communication between the parties but after Ms D left there was no communication between them.
CONCLUSION ON WHETHER THE RESPONDENT IS A PERSON CONCERNED WITH THE CARE, WELFARE OR DEVELOPMENT OF THE CHILDREN
The relationship between Ms D and the respondent was unstable and volatile. The respondent was coercive and controlling of Ms D. Her manipulation of Ms D was at times breathtaking. She faked a serious illness and threatened suicide to manipulate Ms D into continuing the relationship. She threatened Ms D with legal action to enforce her so-called rights in order to put pressure on Ms D to continue the relationship. The respondent seriously suggested that she was concerned for the welfare of Ms D and the unborn children because of the “high risk pregnancy” and that her motivation for lying was to keep Ms D “safe” in Sydney. She actually had the temerity to say that “if people would have heard me back then, Ms D wouldn’t be deceased today”. Her conduct would suggest she was anything but concerned for the welfare of Ms D and the unborn children.
I find that the respondent is not a person concerned with the care, welfare and development of the children within the meaning of s 65C(c) for the following reasons:
(a)The respondent has no relationship with the children;
(b)She has no biological connection to the children;
(c)The relationship between Ms D and the respondent was brief and volatile;
(d)The respondent engaged in coercive and controlling behaviour of Ms D to achieve her own ends;
(e)The respondent placed Ms D under extraordinary pressure to keep her in the relationship in Sydney;
(f)Her conduct does not demonstrate a concern for the unborn children’s welfare in circumstances where she described Ms D as being at high risk in her pregnancy, yet put her under so much stress;
(g)The respondent detests Ms D’s family which includes the first applicant, Ms Wickham;
(h)The focus of the respondent has been on her perceived “rights” rather than the care, welfare or development of the children.
Accordingly, I find that the respondent has no standing to apply for a parenting order in relation to the children. Her application, as contained in her Response filed on 10 June 2021 will be dismissed.
MISCELLANEOUS
During cross-examination of the respondent, an application was made by her counsel, to tender (as belated evidence in chief) a letter written by the respondent’s former solicitor to Ms G 9 April 2021. It remains unclear to me why the letter was not dealt with in re-examination of the respondent. In any event, the application was opposed by the applicants and the ICL neither consented to nor opposed the tender. I dismissed the application and indicated I would provide reasons at a later time.
The letter was said to be relevant to the determination of whether or not the respondent is a person concerned with the care, welfare and development of the children. It was conceded that the letter had not previously been disclosed.
The parties not only have an ongoing obligation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to disclose documents relevant to an issue in the proceedings, but an Order was made on 10 September 2021 that the parties provide any further disclosure within 14 days. There was no explanation provided for the failure to disclose the letter prior to the second day of the hearing.
It was argued by counsel for the respondent that the letter “goes to two things” expressed as follows:
[COUNSEL FOR THE RESPONDENT]: … Firstly, [the respondent] has given evidence … to the extent that she was in a committed relationship and even when the relationship ended on 4 April 2021 that she was continually committed to Ms D thereafter. … And secondly, she was – in a similar vein she was challenged in that regard as to whether or not she was going to be still in the relationship but not available to the children per se and she said she was going to be available to the children and the letter also goes to that issue.
(Transcript 21 December 2021, p.188 lines 1–8)
Particular reliance was placed on paragraph four of the letter which was in the following terms:
Our client also reiterates that she is willing to provide financial and non-financial support to you and the children, as necessary and required. Our client has every intention to remain an active and involved part of the children’s growth, welfare and development.
The letter proceeded to inform Ms D that it was the respondent’s intention to commence Court proceedings to “pursue her rights as a parent of the children”.
The application to tender the letter was opposed, although it was conceded that the letter may well be relevant given that during cross-examination it was put to the respondent that after 4 April 2021 she made no attempt to “reach out” to Ms D (a proposition which was agreed to by the respondent). However, it was argued that the prejudice that would be caused to the applicants involved their inability to obtain other potentially relevant letters from Ms D’s lawyer at the time, two of which were mentioned in the letter sought to be tendered i.e. a letter sent by the respondent’s lawyers to Ms D dated 23 December 2020 and another dated 8 April 2021. It does not seem that either of those letters had been disclosed by the respondent. It was submitted on behalf of the applicants that there may be a course of correspondence passing between Ms D and the respondent’s lawyers that would provide a different context to what is contained in the one letter now sought to be tendered.
Rule 6.17 of the Rules relevantly provides that:
If a party does not disclose a document as required by these Rules:
(a)The party:
(i)Must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission …
The letter, if admitted, would provide evidence that as at the date of the letter:
(a)The respondent had caused two previous letters to be sent to Ms D (neither of which are in evidence and at least one letter has not been disclosed to the applicants);
(b)Observes that Ms D was intending to relocate to Queensland and continued to be unwilling to share any information about her pregnancy and the health and welfare of the yet to be born twins;
(c)Provides an indication that the respondent is willing to provide financial assistance to support Ms D and the children;
(d)States an intention on the part of the respondent to remain active and involved in the children’s growth, welfare and development;
(e)Informs Ms D that the respondent intends to commence Court proceedings and will seek an order that Ms D be held financially liable for some of the costs associated with future travel for the respondent to see the children;
(f)Seeks a response to the two previous letters dated 23 December 2020 and 8 April 2021.
I was not satisfied that the evidence as sought to be given by the respondent at the late stage of the proceedings was such that the Court should provide permission for the document to be tendered. In reality, the letter was intended to provide some corroboration for some evidence by the respondent already before the Court. That was not a sufficient reason in my view to warrant the receipt of the letter. The prejudice that would be caused to the applicants by admitting the letter outweighed any possible benefit to the respondent.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 3 February 2022
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