Livvy & Kash - [2023] FedCFamC1F 1014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livvy & Kash [2023] FedCFamC1F 1014

File number(s): BRC 16626 of 2021

Judgment of: BAUMANN J

Date of judgment: 5 December 2023

Catchwords: FAMILY LAW – PARENTING – INTERIM – Contested residence – Where in mid-2022 the child’s residence on an interim basis was changed from the mother to the paternal grandmother – Where the mother has failed to spend time with the mother for almost 12 months after the change of residence – Where at trial in November 2023 legal representatives were granted leave to withdraw – Assessment of risk – Interim orders made for the child to remain living with the paternal grandmother and commence spending substantial unsupervised time with the mother pending the final hearing

Legislation: Family Law Act 1975 (Cth) s 60CC

Cases cited:
Banks & Banks (2015) FLC 93-637

Goode & Goode (2006) FLC 93-286

Division: Division 1 First Instance

Number of paragraphs: 44

Date of hearing: 23 November 2023

Place: Brisbane

Solicitor for the Applicant: Litigant in person

Counsel for the First Respondent: Ms A Black

Solicitor for the First Respondent: O’Hare Law

Counsel for the Second Respondent: Mr C Duplock

Solicitor for the Second Respondent: A P Hodgson & Associates

Independent Children’s Lawyer: Julie Harrington Solicitor

ORDERS

BRC 16626 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LIVVY

Applicant

AND:
MS KASH

First Respondent

MR MENZIES

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

5 DECEMBER 2023

THE COURT ORDERS:
1.That all current parenting Orders are discharged.

THE COURT ORDERS UNTIL FURTHER ORDER:
2.That the Applicant paternal grandmother and the First Respondent mother have equal shared parental responsibility for major long term decisions for the child, X born 2015.
3.That X shall live with the paternal grandmother.
4.That X shall spend time and communicate with the mother at all times as may be agreed in writing but at least as follows:
(a)From 12noon Saturday, 9 December 2023 to 4.00pm Sunday, 7 January 2024, with the paternal grandmother to transport X to the B Supermarket for changeover with the mother at the commencement of time, and for changeover at conclusion of this time to be at the McDonalds Restaurant, Suburb C;
(b)From 9.00am Friday, 26 January 2024 to 5.00pm Sunday, 28 January 2024;
(c)Commencing Friday, 16 February 2024 at 5.30pm to Sunday, 18 February 2024 at 5.00pm (extending to 5.00pm Monday if the Sunday is a public holiday) and every third weekend thereafter; and
(d)For the first half of the end of term one (1) Queensland school term (Easter holidays) commencing Friday, 29 March 2024;
(e)Commencing term two (2) 2024, from Friday, 19 April 2024 at 5.30pm to Sunday, 21 April 2024 at 5.00pm (extended to 5.00pm Monday if Monday is a public holiday) and every third weekend thereafter;
(f)By telephone or video/facetime each Wednesday and each non-contact Sunday between 6.00pm and 6.30pm when the child is in the care of the paternal grandmother, with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1F 1014
Decision Date: 5 December 2023

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Livvy sought to change the interim residence of her child, X, from the paternal grandmother to herself. Kash, the paternal grandmother, opposed the change. The case arose from an earlier decision in mid-2022, which had placed X in Kash's care. Since that time, Livvy had not spent time with X for almost 12 months. The trial in November 2023 saw the legal representatives for both parties granted leave to withdraw. The court had to decide whether the interim residence of X should be changed from Kash to Livvy, and if so, what arrangements should be made for time spent with Livvy.

The court considered the evidence and determined that Livvy had not demonstrated a sufficient change in circumstances to warrant a change in residence. The court also found that there was a risk that X could be exposed to harm if she were to live with Livvy. The court noted that Livvy had not spent time with X for almost 12 months, and that there was evidence that Livvy had used illicit substances when X was in her care. The court was also concerned that Livvy had not followed medical advice and had not ensured that X had her medication. The court concluded that it was in X's best interests to remain with Kash on an interim basis.

The court made orders for X to remain living with Kash and to spend substantial unsupervised time with Livvy. The court also made orders for Livvy to attend counselling for trauma and anxiety and to follow medical advice. The court ordered that X was to spend time with Livvy on specified occasions and that Livvy was to facilitate and ensure that X communicated with Kash while in her care. The court also ordered that a Child Court Expert be appointed to prepare a family report and that the report be provided to the parties and to any Independent Children's Lawyer in the proceedings.

The court adjourned the case for a Case Management Hearing and further trial directions, and set down the case for a Final Hearing. The Independent Children's Lawyer was at liberty to apply. The form of the order was subject to the entry in the Court's records, and the copy of the Court's Reasons for judgment could be subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

BRC 16626 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LIVVY

Applicant

AND:

MS KASH

First Respondent

MR MENZIES

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

5 DECEMBER 2023

THE COURT ORDERS:

1. That all current parenting Orders are discharged.

THE COURT ORDERS UNTIL FURTHER ORDER:

2. That the Applicant paternal grandmother and the First Respondent mother have equal shared parental responsibility for major long term decisions for the child, X born 2015.

3. That X shall live with the paternal grandmother.

4. That X shall spend time and communicate with the mother at all times as may be agreed in writing but at least as follows:

(a) From 12noon Saturday, 9 December 2023 to 4.00pm Sunday, 7 January 2024, with the paternal grandmother to transport X to the B Supermarket for changeover with the mother at the commencement of time, and for changeover at conclusion of this time to be at the McDonalds Restaurant, Suburb C;

(b) From 9.00am Friday, 26 January 2024 to 5.00pm Sunday, 28 January 2024;

(c) Commencing Friday, 16 February 2024 at 5.30pm to Sunday, 18 February 2024 at 5.00pm (extending to 5.00pm Monday if the Sunday is a public holiday) and every third weekend thereafter; and

(d) For the first half of the end of term one (1) Queensland school term (Easter holidays) commencing Friday, 29 March 2024;

(e) Commencing term two (2) 2024, from Friday, 19 April 2024 at 5.30pm to Sunday, 21 April 2024 at 5.00pm (extended to 5.00pm Monday if Monday is a public holiday) and every third weekend thereafter;

(f) By telephone or video/facetime each Wednesday and each non-contact Sunday between 6.00pm and 6.30pm when the child is in the care of the paternal grandmother, with the call to be initiated by the mother to the mobile telephone number of the paternal grandmother, with:

(i) the calls to be in private, unrecorded and uninterrupted; and

(ii) the paternal grandmother to ensure her mobile phone is able to receive calls and is charged.

5. That unless otherwise agreed in writing, for the time prescribed in Orders 4(b), 4(c), 4(d) and 4(e), changeovers shall occur at the McDonald’s Restaurant, Suburb C.

6. That X shall spend time and communicate with the father as may be agreed between the father and the paternal grandmother, when not otherwise spending time with the mother.

7. That when X is in the mother’s care, the mother shall facilitate and ensure X communicates with the paternal grandmother by telephone or video/facetime:

(a) on Christmas Day at a time agreed and failing agreement at 11.00am; and

(b) during school holidays, each Wednesday and each Sunday between 6.00pm and 6.30pm, with the mother to initiate the call to the mobile phone of the paternal grandmother and with the calls to be in private, unrecorded and uninterrupted.

8. That save for the prescribed use of medicinal cannabis, the mother shall not use illicit substances when the child is in her care.

9. That the paternal grandmother will give the mother reasonable notice by text message or email of any appointments for X with a health professional, and this Order authorises the mother to attend if she seeks to do so.

10. That this Order is sufficient authority for the mother to attend X’s school and particularly her graduation for the year 2023.

11. That the mother ensure:

(a) she follows the medical advice of X’s treating doctors;

(b) X is provided with her medication; and

12. That the mother shall attend upon a Psychologist for the purpose of counselling for trauma and anxiety of not less than one (1) occasion per month.

13. That during the time X is with any party, that party shall:

(a) respect the privacy of the other party and not question X about the personal life of the other party;

(b) speak of the other party respectfully;

(c) not discuss matters of an adult nature with X or in X’s presence or hearing and the parties shall use their best endeavours to ensure that no other person discusses matters of an adult nature with X or in X’s presence or hearing; and

(d) not denigrate the other party nor allow any other party to do so in X’s presence or hearing.

Family report

14. That pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”), Child Court Expert Ms D be appointed by the Senior Child Court Expert of the Federal Circuit and Family Court of Australia Brisbane Registry, in these proceedings to prepare an updated family report (“report”).

15. That in addition to reporting any matters that the Child Court Expert considers important to the welfare of the X and the factors contained in s 60CC of the Act, the following opinions should be included:

(a) What, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and

(b) What, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the X in the future.

16. That it should be noted X should not be required to express her views in relation to any matter but in the event that she does express views, the Child Court Expert should also canvass and report the views and likely consequences of and for X if the Court did not reach a conclusion which accorded with X’s views.

17. That the parties shall attend appointments with the Child Court Expert on a date and time to be advised by the Child Court Expert, and they shall facilitate the attendance of X for those appointments (unless otherwise advised).

18. That the Federal Circuit and Family Court of Australia be responsible for payment of the cost of preparation of the report.

19. That the Child Court Expert shall have leave to inspect subpoenaed documents produced to the Court.

20. That the Child Court Expert has liberty to list the matter for further directions and for the purpose of that mention, the Child Court Expert and the parties have leave to appear on the telephone. For the purpose of listing the matter, the Child Court Expert has leave to contact the Associate to the presiding Judge.

Release of report

21. That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.

22. That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of X:

(a) A Children’s Court;

(b) A child protection authority;

(d) A convener of any legal dispute resolution conference.

23. That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.

Other

24. That these proceedings be adjourned for Case Management Hearing and further trial directions at 9.30am on 26 March 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

25. That the Independent Children’s Lawyer be at liberty to apply.

26. That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 11 June 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 16626 of 2021
Judgment of:	BAUMANN J
Date of judgment:	5 December 2023
Catchwords:	FAMILY LAW – PARENTING – INTERIM – Contested residence – Where in mid-2022 the child’s residence on an interim basis was changed from the mother to the paternal grandmother – Where the mother has failed to spend time with the mother for almost 12 months after the change of residence – Where at trial in November 2023 legal representatives were granted leave to withdraw – Assessment of risk – Interim orders made for the child to remain living with the paternal grandmother and commence spending substantial unsupervised time with the mother pending the final hearing
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:	Banks & Banks (2015) FLC 93-637 Goode & Goode (2006) FLC 93-286
Division:	Division 1 First Instance
Number of paragraphs:	44
Date of hearing:	23 November 2023
Place:	Brisbane
Solicitor for the Applicant:	Litigant in person
Counsel for the First Respondent:	Ms A Black
Solicitor for the First Respondent:	O’Hare Law
Counsel for the Second Respondent:	Mr C Duplock
Solicitor for the Second Respondent:	A P Hodgson & Associates
Independent Children’s Lawyer:	Julie Harrington Solicitor

BRC 16626 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS LIVVY Applicant
AND:	MS KASH First Respondent MR MENZIES Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	5 DECEMBER 2023