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 of Ms D’s sister’s family unit made up of Ms Wickham (Ms D’s sister), Ms Pace (Ms Wickham’s fiancé) and their two children, E, aged two and a half and Z, aged six months.
Ms Wickham and Ms Pace seek an Order that they each have parental responsibility for the twins and that the twins live with them.
The background to this sad case is set out in an earlier decision[1] which involved a third party respondent also seeking a parenting order. That person was found not to be a parent and not to be a person concerned with the care, welfare or development of the children.[2] I incorporate the background from the earlier decision below [7] – [21]:
[1] Wickham and Pace & Toledano [2021] FedCFamC1F 50.
[2] Wickham & Toledano [2022] FedCFamC1F 32.
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 on […] 2019 and [Ms Pace] is due to give birth to her second child in […] 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 on […] 2016. There is no other parent in [F’s] life. The respondent operates her own […] company.
[Ms D] and the respondent met in [mid] 2020 via a dating App and quickly commenced a relationship resulting in the respondent proposing to [Ms D] on […] 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 [late] 2020. There was a further separation in [late] 2020 after which [Ms D] returned to live in Brisbane. The parties reconciled in [early] 2021 but separated on a final basis [in mid 2021]. It seems common ground that leading up to the respondent excluding [Ms D] from her home [on this day] 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, [in mid] 2021. The visit was uneventful.
Following the children’s three month paediatric assessment the applicants provided the respondent with a photo and progress report.
[In mid] 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 [in mid] 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].
Obviously, neither of the applicants are a parent of the twins but they are able to bring the application for a parenting order because they are persons concerned with the care, welfare or development of the children within the meaning of s 65C of the Family Law Act 1975 (Cth).
Pursuant to s 64C of the Act, this Court may make an order in favour of a person who is not a parent.
A parenting order is defined by s 64B(1) of the Act as an order dealing with a matter mentioned in s 64B(2). Those matters include the person or persons with whom the children live and the allocation of parental responsibility.
The paramount consideration in deciding whether to make a particular parenting order is the best interests of the children (s 60CA) and in determining what is in the best interests of the children, in this case, I have had regard to the matters set out in s 60CC so far as relevant to the circumstances.
As already noted in the background, I have been assisted by a family report prepared by a very experienced family report writer who had the opportunity to conduct two home visits with the applicants and the twins twice in mid-2021. I have also been assisted by an affidavit from Ms Wickham providing an update on the twins’ welfare. The twins appear to be thriving.
I am satisfied that the parenting Order sought by the applicants is in the best interests of the children and accordingly propose to make that Order.
Before concluding I note that the applicants have expended an extraordinary $369,785 in legal fees and expect to incur a further $3,000 for today’s hearing. That is regrettable to say the least. I further note that the third party who was previously a respondent in the proceedings settled a costs claim against her by contributing $75,000 towards the applicants’ legal costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 12 May 2022
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