Wickham & Toledano (No 3) - [2022] FedCFamC1F 321

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wickham & Toledano (No 3) [2022] FedCFamC1F 321

File number(s): BRC 7205 of 2021

Judgment of: CAREW J

Date of judgment: 12 May 2022

Catchwords: FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – SAME SEX COUPLE – Undefended Hearing – Where a previous respondent was found to have no standing to make an application for a parenting order –Where the first applicant’s sister died after giving birth to twins – Where the first and second applicants have two children of their own and are engaged to be married – Where the applicants each sought parental responsibility and live for the twins to live with them – Where the twins already live with the applicants – Where the Independent Children’s Lawyer supports the Order being made – Where the Court orders each applicant have parental responsibility for the twins and that the twins live with the applicants.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Wickham & Toledano [2021] FedCFamC1F 50

Wickham & Toledano (No 2) [2022] FedCFamC1F 32

Number of paragraphs: 10

Date of hearing: 12 May 2022

Place: Brisbane

Solicitor for the Applicants: Mr S. Page, Page Provan Lawyers

Counsel for the Independent Children’s Lawyer: Ms C. Dart

Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland
ORDERS

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:

12 MAY 2022

THE COURT ORDERS THAT:
1.Ms Toledano be removed as a respondent in the proceedings.
2.Each of applicants has parental responsibility for the children X and Y born 2021.
3.The children live with the applicants, Ms Wickham and Ms Pace.
4.Any other application not otherwise disposed of be dismissed.

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).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J.

X and Y are nearly 12 months old. They are twins and have had a difficult start to life because their mother, Ms D, died within days of giving birth to them. Fortunately for them, they have been lovingly enveloped into Ms D’s extended family and now form part…

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 Wickham & Toledano (No 3)

Details

AGLC: Wickham & Toledano (No 3) [2022] FedCFamC1F 321
Case: [2022] FedCFamC1F 321
Decision Date

CaseChat Overview and Summary

The case of Wickham and Toledano (No 3) was heard in the Federal Circuit and Family Court of Australia (Division 1). The applicants, Ms Wickham and Ms Pace, are a same-sex couple who sought parental responsibility and the right for the twins to live with them. The twins' biological mother, Ms D, passed away shortly after giving birth, and the applicants, who are Ms D's sister and her fiancé, have been caring for the twins. The primary legal issue in this case was whether the applicants were suitable candidates for being granted parental responsibility over the twins and if it was in the best interests of the children for them to live with the applicants. The court considered the relevant provisions of the Family Law Act 1975 (Cth), focusing on the paramount consideration of the best interests of the children (s 60CA) and the matters set out in s 60CC.

In reaching its decision, the court was assisted by a family report prepared by an experienced family report writer who had visited the applicants' home on two occasions. The report concluded that the applicants had developed strong bonds with the twins and presented in a stable and functional manner, with a high level of understanding of the developmental needs of the twins. The Independent Children's Lawyer also supported the applicants' application. The court found that granting the applicants parental responsibility and allowing the twins to live with them was in the best interests of the children. The previous respondent, who was not a parent, was removed from the proceedings as she had no standing to make an application for a parenting order.

The court ordered that Ms Toledano be removed as a respondent in the proceedings, each applicant has parental responsibility for the children, the children live with the applicants, and any other application not otherwise disposed of be dismissed. The applicants have incurred significant legal costs in the proceedings, which the court noted with regret.

Orders