Livingston & Oxley
[2022] FedCFamC1F 1090
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livingston & Oxley [2022] FedCFamC1F 1090
File number(s): TVC 1668 of 2019 Judgment of: BAUMANN J Date of judgment: 8 December 2022 Catchwords: FAMILY LAW – PARENTING – Final consent orders reached between the parties and made by the Court Cases cited: Rice & Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 11 Date of last submission/s: 8 December 2022 Date of hearing: 8 December 2022 Place: Brisbane Solicitor for the Applicant: Family Lawyers Mackay Solicitor for the Respondent: Macrossan & Amiet Solicitor for the Respondent: Mr P McLachlan, Beckey Knight & Elliott ORDERS
TVC 1668 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LIVINGSTON
Applicant
AND: MS OXLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
8 DECEMBER 2022
THE COURT ORDERS:
1.That all extant applications be dismissed.
2.That the children live with the mother.
3.That the mother have sole parental responsibility concerning the long-term care, welfare and development of the children, X born 2014 and Y born 2016 (“the children”).
4.That for the purpose of these Orders, parenting issues to which sole parental responsibility applies are:
(a)any significant medical or health matter concerning the children;
(b)any medical or health matter affecting either parent, which may affect the ability of that parent to care for the children;
(c)matters relating to the education of the children, including but not limited to, the choice of school and curriculum, school, other than with respect to routine administrative matters;
(d)disciplinary matters other than of a trivial nature;
(e)matters concerning the social development and sporting activities of the children, including the provision of whatever authority necessary to enable the parent to speak to any relevant persons; and
(f)relocating the residence of the children so that the existing parenting arrangements become impractical.
5.That the children’s surname be changed to “Livingston-Oxley”.
Passports
6.That pursuant to Section 11(b) of the Australian Passports Act 2005 (Cth), the mother is permitted to solely apply and/or receive the children’s Australian passport, notwithstanding the absence of the father’s consent, upon producing a copy of these Orders.
7.That the Independent Children’s Lawyer be discharged.
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 a pseudonym Livingston & Oxley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The father, Mr Livingston, now aged 36 years, and the Respondent mother, Ms Oxley, now aged 33 years, are the parents of two children of their relationship, X, born 2014 (now aged eight years) and Y, born 2016 (now aged six years). The parties separated in June 2019 after a relationship of approximately 10 years.
The father initially commenced proceedings in the Federal Circuit Court of Australia (as it was then known) on 20 December 2019. Although I have been provided today with consent orders that the parties and the Independent Children’s Lawyer, Mr McLachlan, seek that I make, it is important that I provide a short context of the background and some brief reasons as to why the Court has decided to make the orders offered to the Court today.
BACKGROUND
After the proceedings were commenced by the father, the matter has been before the Court on a number of occasions. Prior to the proceedings being brought, a Domestic Violence Order in the State Court was made, naming the mother as an aggrieved person in late 2019, for a period of five years. At least, from the early stages of this matter, a topic to which I will turn briefly shortly, the mother had alleged historic sexual assault charges against the father.
The existence of family violence in the relationship has clearly been a matter of concern to the court, and the Court has proceeded cautiously, with the first Order for time made by Judge Demack in the Federal Circuit Court of Australia on 23 March 2020, which, amongst other orders, provided for the children to live with the mother and for the father to spend two hours supervised time at the City B Children’s Contact Centre, in each three week period, to align with the father’s work roster.
A family report was prepared by Ms C, which the Court has read. That report was filed on 9 November 2020 and recommended the father spend supervised time with the children. The current Independent Children’s Lawyer, Mr McLachlan, came on the record in November 2020, and ultimately the proceedings were transferred to the Family Court of Australia (as it was then known). Apart from the report from Ms C, and consistent with orders made by judicial officers of the Courts, attempts have been taken to modify the children’s views of their father which manifest an expression by them of not wishing to spend any time with him and/or of being fearful of him. Two attempts of such therapy described as “reunification counselling” have, at least, been undertaken, firstly, by Ms D (who filed an affidavit of her efforts on 3 December 2021), and thereafter, Ms E, her affidavit having been filed on 4 November 2022.
I have read and considered that evidence. Whilst the evidence of the experts is essentially untested, they do reflect a consistent situation since, at least, separation, of these two young children resisting spending time with the father, and attempts for that to occur in any meaningful way have effectively failed. It would have been over to the father, of course, to pursue this matter to a final hearing and to test whether the children’s attitude is based on some history of their awareness of the dispute between the parents and/or the father’s behaviour to them, no doubt, which is the mother’s assertion, or is merely a fabrication of the children’s mind influenced by the mother, with no basis of reality (which is effectively the father’s assertion).
However, a further factor which, no doubt, is contextual and has had a significant impact on the parties’ co-parenting capacity, is that recently the father has been charged with serious criminal offences, asserted by the complainant mother. They are serious charges which, as I understand it, the father seeks to defend himself, as he is perfectly entitled to do. There is no way of knowing, if those proceedings continue to their finality in the District Court of Queensland, how long that will take. In those circumstances and in the context as I have described it, the parties offer final consent orders today.
Properly, in my view, the father seeks a notation to which the wife does not apparently oppose, that in making these orders, he is not to be seen as admitting any of the allegations made against him. The experienced solicitor who is the Independent Children’s Lawyer in this matter, Mr McLachlan, raised with me today the fact that there could be other provisions in these orders which might, for example, prescribe a right for the children, if they so articulate at some future time, a desire to see the father, to it being facilitated by the mother. I could conjecture that there could be orders that involved the father having the right to send them cards or gifts or other things.
However, in the context of this matter, the parties have negotiated very simple orders which are set at the commencement of these Reasons that, effectively, provide that the children live with the mother; that she have sole parental responsibility for those children; that the children’s surname be changed, and that the mother can obtain an Australian passport for the children.
I explained, during the course of today’s brief hearing (noting the matter was listed for directions and not a trial) that, of course, in parenting cases, orders are never truly final. There is a long history of jurisprudence in this area arising, at least, from the 1979 case of Rice & Asplund (1979) FLC 90-725 and further discussed, over the last 30 years, about the ability for a parent to seek to enliven the Court in its parenting jurisdiction, where a significant and substantial change of circumstances has taken place since the orders were made, and where it is in the best interests of the children in the light of those change of circumstances, to allow further parenting proceedings to be undertaken.
The mother is aware of that right, as is the father. However, in the circumstance of the current case and on the evidence, untested as it is, I am satisfied that the final orders offered to the Court today are today in the best interests of the children. I make the orders. I also discharge the Independent Children’s Lawyer. I will cause the Reasons, delivered ex-tempore today, to be published in case at some future date a court is being invited to consider re-opening or allowing fresh proceedings for parenting of these two delightful children to be undertaken.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 29 May 2023
0
0
0