Livan and Livan and Anor

[2010] FamCA 771

FAMILY COURT OF AUSTRALIA

LIVAN & LIVAN AND ANOR [2010] FamCA 771

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Livan

1^ST RESPONDENT: Mr Livan

2^ND RESPONDENT: Ms Barnes-Livan

FILE NUMBER: CAC 423 of 2010

DATE DELIVERED: 16 August 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 16 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance by or on behalf of the applicant

SOLICITOR FOR THE APPLICANT: No appearance by or on behalf of the applicant

COUNSEL FOR THE FIRST & SECOND

RESPONDENT:

Mr D. Browne

SOLICITOR FOR THE FIRST & SECOND

RESPONDENT:

Jeanine Lloyd & Associates

Orders

IT IS ORDERED THAT:

1. Mr Livan, born … 1976, and Ms Barnes-Livan, born … 1974, have sole parental responsibility for H, born … November 2009.

2. H will live with Mr Livan and Ms Barnes-Livan.

3. Noting that H’s mother was not available in Court on the day in which these orders were made she is permitted to make a further application to this Court in relation to matter’s relating to H’s parenting provided she files an affidavit explaining her absence from Court this day.

4. In so far as any person requires information verifying that there is no such existing or pending application from Ms Livan a certificate from a Registrar of this Court that there is no such action pending upon due enquiry having been made will suffice for all purposes.

5. The matter is removed from the Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Livan & Livan and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:    CAC 423 of 2010

MS LIVAN

Applicant

And

MR LIVAN

1^st Respondent

And

MS BARNES-LIVAN

2^nd Respondent

REASONS FOR JUDGMENT

1. In these proceedings, the application before the Court was for consent orders in relation to what would happen about the living arrangements and the parental responsibility for H, born in November 2009. 

2. The circumstances relating to his birth and the fact that there was no normal way of identifying who his father might be are sufficiently set out in the material that was filed in support of the application for consent orders.

3. In short, H is fortunate that he has the benefit of two people who love him and want to care for him, being his uncle (his mother’s brother) and his uncle’s wife.  H needs to have the security – as do the parties – of an order which gives them authority to act on his behalf, particularly in relation to medical treatment or in relation to his schooling in due course or, for that matter, in relation to his birth registration and passports.

4. The orders sought to be made by consent included provision (and I am satisfied, almost certainly inadvertently) that left the situation about parental responsibility for H to be shared with his birth mother, that is, Ms Livan.  Unfortunately, having signed the orders as submitted, the mother was unavailable to clarify the situation when the apparent discrepancy was discovered.

5. The mother effectively has disappeared, although her brother, in his evidence before me today, indicated that he thought she was probably in Perth – somewhere.  She had in the past been a missing person for some years, without making contact with her family.  Since she left Canberra after the commencement of these proceedings, she has not been in contact with Mr Livan or Ms Barnes-Livan, to ascertain what was happening with H.

6. I am satisfied from the evidence which is now before me that it will be virtually impossible to obtain any response by the mother about these proceedings at this point.  It is inappropriate that the child should be left in these circumstances without parents who have authority to make appropriate decisions for him, and I propose to make an order.  I note, in doing so, that his mother has not had an opportunity to comment, and this should be left open to her if she should choose at some point to engage once again with the child.

7. I should add, that if that happens, it will be necessary for her to explain why she has not been involved in these proceedings after the initial filing of the documents, and why she has not been in contact with H in the meantime.  However, that is a matter for the future and something for her to resolve in due course.

8. This is a matter in which I am satisfied that it is unnecessary for the parties to further attend upon any family consultant of this Court for the purposes of discussing the arrangements proposed.  I am satisfied further that it is appropriate they should have the parental responsibility in respect of H.

9. I am also satisfied that it is appropriate that the responsibility they have for the child should be all-encompassing, and I propose to make orders which will facilitate that. It is a case in which the child will spend his time with his new parents, and I am satisfied that the conditions set out under s 60CC of the Family Law Act1975 (Cth) in relation to his best interests are appropriately covered by the matters that I have before me. Accordingly I will make the following orders.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 16 August 2010.

Senior Legal Associate:

Date: 6 September 2010