Liepina & Arterberry

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Liepina & Arterberry [2024] FedCFamC2F 1397

File number(s): SYC 2314 of 2021
Judgment of: JUDGE SHOEBRIDGE
Date of judgment: 4 October 2024
Catchwords: FAMILY LAW – final hearing – Aboriginal child in care of non-Aboriginal putative paternal grandparents – risks arising in relation to each of the mother and the putative father – where putative father lives with putative paternal grandparents – where child has experienced significant change in her living arrangements to date-orders for parenting arrangements.   
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Hardie & Capris (2010) FamCA 1046

Mazorski & Albright (2007) 37 FAM LR 518.

R v R (2000) 155 FLR 29

Division: Division 2 Family Law
Number of paragraphs: 150
Date of last submission/s: 24 September 2024
Date of hearing: 26 September 2024
Place Sydney
Solicitor for the Applicant: Namrata Singh of Opal Legal
First Respondent: No appearance
Solicitor for the Second Respondent: Bal Ram of Rams Family Lawyers

ORDERS

SYC 2314 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LIEPINA

Applicant

AND:

MS ARTERBERRY

First Respondent

MR B LIEPINA

Second Respondent

ORDER MADE BY:

JUDGE SHOEBRIDGE

DATE OF ORDER:

4 OCTOBER 2024

BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:

1.That all previous parenting orders in respect to the child X born 2019 be discharged

2.That the applicant Mr Liepina and second respondent Mr B Liepina shall have joint parental responsibility and joint decision-making authority in relation to all major long‑term issues relating to the child X born in 2019 ("the Child").

3.For the purpose of the above order:

(a)The applicant and second Respondent shall consult with each other on terms they agree to; and

(b)They shall make a genuine effort to come to a joint decision; and

(c)If after taking the above steps, the applicant and second respondent are unable to agree, then the final decision shall be made by the applicant.

4.That the applicant and the second respondent shall keep the mother informed in a timely manner of all significant decisions in respect to the child’s health, schooling and development.

5.That the applicant and second respondent shall have joint parental responsibility in relation to signing all necessary documentation and organising and obtaining and Australian Passport for the Child without the consent or signature of the First Respondent Mother.

6.That pursuant to s11(1) of the Australian Passports Act 2005, these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X born in 2019.

7.That the Australian Passport issued to the child shall be issued to the applicant and to the second respondent to hold on behalf of the child.

8.That the applicant and the second respondent be permitted to and be authorised by these orders to travel internationally with the child.

9.That the child shall live with the applicant Mr Liepina.

10.That the child shall live and spend time with the second…

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Details
Case
[2024] FedCFamC2F 1397
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia concerned the final determination of parenting arrangements for a child born in 2019. The applicant, Mr Liepina, sought joint parental responsibility and decision-making authority with the second respondent, Mr B Liepina, the child's putative father, who lives with the putative paternal grandparents. The child's biological mother, the first respondent, is not part of the primary parenting arrangement. The court had to decide on the best interests of the child, considering the significant changes in the child's living arrangements and the welfare of the child in the context of her Aboriginal background. The court also had to consider the health and developmental needs of the child, including her diagnosis of Autism.

The court addressed several key legal issues, including the weight to be given to the child's Aboriginal heritage in determining her best interests, the suitability of the putative paternal grandparents as caregivers, and the implications of the child's diagnosis of Autism on her parenting needs. The court considered evidence from experts in child development, Aboriginal child welfare, and Autism support. The court also assessed the risks and benefits of the proposed parenting arrangements, particularly the potential for conflict and the importance of maintaining a stable and supportive environment for the child.

In reaching its decision, the court found that the best interests of the child would be served by granting joint parental responsibility to the applicant and the second respondent, with the child residing primarily with the applicant. The court also imposed several conditions to ensure the child's welfare, including requirements for the applicants to engage in parenting courses, consult with health services, and maintain communication with the child's mother under specific guidelines. The court further ordered that the child's medical and educational information be shared among the parties involved and that the applicants be authorised to obtain an Australian passport for the child. The court also made specific provisions to protect the child from exposure to alcohol, drugs, and negative influences, and to prevent any party from discussing the proceedings with the child or denigrating other parties in the child's presence.

The final orders include the discharge of previous parenting orders, the establishment of joint parental responsibility and decision-making authority for major long-term issues, and specific provisions for the child's living arrangements, communication with the mother, and participation in parenting courses. The court also mandated that the applicants keep the mother informed of significant decisions and that all parties refrain from certain behaviours that could be detrimental to the child. The court further authorised the applicants to obtain an Australian passport for the child and to travel internationally with the child, subject to the conditions outlined in the orders.

Orders

Orders of the court

SYC 2314 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LIEPINA

Applicant

AND:

MS ARTERBERRY

First Respondent

MR B LIEPINA

Second Respondent

ORDER MADE BY:

JUDGE SHOEBRIDGE

DATE OF ORDER:

4 OCTOBER 2024

BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:

1. That all previous parenting orders in respect to the child X born 2019 be discharged

2. That the applicant Mr Liepina and second respondent Mr B Liepina shall have joint parental responsibility and joint decision-making authority in relation to all major long‑term issues relating to the child X born in 2019 ("the Child").

3. For the purpose of the above order:

(a) The applicant and second Respondent shall consult with each other on terms they agree to; and

(b) They shall make a genuine effort to come to a joint decision; and

(c) If after taking the above steps, the applicant and second respondent are unable to agree, then the final decision shall be made by the applicant.

4. That the applicant and the second respondent shall keep the mother informed in a timely manner of all significant decisions in respect to the child’s health, schooling and development.

5. That the applicant and second respondent shall have joint parental responsibility in relation to signing all necessary documentation and organising and obtaining and Australian Passport for the Child without the consent or signature of the First Respondent Mother.

6. That pursuant to s11(1) of the Australian Passports Act 2005, these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the child X born in 2019.

7. That the Australian Passport issued to the child shall be issued to the applicant and to the second respondent to hold on behalf of the child.

8. That the applicant and the second respondent be permitted to and be authorised by these orders to travel internationally with the child.

9. That the child shall live with the applicant Mr Liepina.

10. That the child shall live and spend time with the second respondent by agreement between the applicant and the second respondent.

11. That any time or communication between the child and the first respondent mother be at the discretion of the applicant and the second respondent and that the mother otherwise be restrained from spending any time or communicating with the child.

12. That without admission, the applicant, first respondent and second respondent shall each be restrained from the following:

(a) Denigrating the other parties or any other member of the other party’s household within the presence or hearing of the child or permitting or authorising any third party from doing so.

(b) Discussing these proceedings or any issues arising out of these proceedings with the child.

(c) Physically disciplining the child or allow any party to discipline the child.

(d) Making critical or derogatory remarks on social media in relation to the other party’s or referring in any way to the proceedings.

(e) Being under the influence of alcohol in excess or illegal drugs or substances in the presence of the child or whilst the child is in his or her care; and

(f) Knowingly bringing the child into contact with any person under the influence of illicit drugs or alcohol in excess.

13. That the second respondent shall engage with S Service to build his awareness and understanding around supporting a child with Autism, including being linked into resources and psychoeducation.

14. That the applicant and the second respondent shall engage with Q Health Services in Suburb C as far as possible and practicable to facilitate culturally responsive childhood health and support services for X.

15. That the second respondent shall register and participate in parenting courses including ‘Circle of Security’ (relationships and healthy attachment) and ‘Tuning in to Kids’ (building emotional intelligence and emotion coaching), to build awareness and capacity around child development, fostering healthy relationships, and setting appropriate boundaries with X.

16. That in the event of childhood illness or emergency, the applicant, mother and the second respondent shall inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical/mental health and allied professionals and counsellors to release the child’s medical information to any of the parties to these proceedings.

17. That each party be permitted to liaise directly with and receive information about the child from the child’s relevant schools/education facility and extracurricular activities. This order authorises any and school/education facility and officials to release the child’s information to any of the parties to these proceedings.

18. That the party’s shall keep each other advised at all times as to email and telephone contact details.

19. That all communications between the applicant and the second respondent and the respondent mother shall be by way of email except in the case of an emergency when the applicant and second respondent may communicate with the mother by way of text message or telephone NOTING THAT where possible any such communications may be conducted with the mother through the applicant’s wife Ms D.

20. That a copy of these orders is to be provided by the applicant and or the second respondent to the child’s day care service and or school whichever is applicable as well as to the child’s medical professionals and medical centres.

21. That the Independent Children’s lawyer shall be excused from interviewing the child on the grounds that there are exceptional circumstances.

22. That the order appointing the Independent Children’s lawyer be discharged.

23. That the Independent Children’s Lawyer shall by way of email provide a sealed copy of these orders to the first respondent mother.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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