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Children – artificial conception procedure – respondent lacked standing to bring parenting application…

…where she and the deceased mother were not in a de facto relationship

In Wickham & Toledano [2022] FedCFamC1F 32 (3 February 2022), Carew J heard an application for parenting orders by the maternal aunt and her husband, in respect of twins born in 2021 where their birth mother died in that year.

The respondent (Ms B) was the former partner of the late mother. After a short engagement and at least five separations, their same-sex relationship ended in April 2021.

The interim issue before the court was Ms B’s standing to apply for a parenting order.

It was agreed that per s60H(1) of the Act (Family Law Act 1975 (Cth), the respondent was a parent if she and the birth mother were in a de facto relationship at the time of carrying out the artificial conception procedure, which resulted in the birth of the children ([20]).

Carew J said (from [21]):

“Whether or not Ms B and the respondent lived in a de facto relationship at the time the artificial conception procedure was carried out is a question of fact …

(…)

[51] … [T]he relationship between the respondent and Ms B was short. … It was an intense and volatile relationship. They maintained their own residences despite Ms B spending time, including overnights, at the respondent’s residence … They owned no property together. They had no joint accounts. …

[52] It could not be said that [at the time of the procedure] … that they had a relationship as a couple living together on a genuine domestic basis.

[53] Accordingly, I find that the respondent is not a parent within the meaning of the Act.”

The court then found (at [75]) that Ms B was not a person concerned with the care, welfare and development of the children within the meaning of s65C(c) (for reasons including that she had “no relationship with the children”), such that her application was dismissed and the case was otherwise listed for a final hearing.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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