FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livvy & Kash (No 2) [2024] FedCFamC1F 697
File number(s): BRC 16626 of 2021 Judgment of: BAUMANN J Date of judgment: 22 October 2024 Catchwords: FAMILY LAW – CHILDREN – Where the child has lived for significant periods of time within the homes of the paternal grandmother and the mother – Where the child has an underlying medical condition which requires therapeutic management – Where the paternal grandmother and the mother have a high level of conflict and mistrust – Where the father seeks to spend time with the child but acknowledges he is not an appropriate candidate for primary care of the child – Final Orders made for the child to live with the mother and spend time with the father and paternal grandmother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC Cases cited: Livvy & Kash [2023] FedCFamC1F 1014 Division: Division 1 First Instance Number of paragraphs: 105 Date of hearing: 11-13 June and 1 July 2024 Place: Brisbane Counsel for the Applicant: Ms P Eviston Solicitor for the Applicant: Clarity Legal Group Counsel for the First Respondent: Mr S Jones 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 Counsel for the Independent Children’s Lawyer: Dr M Sayers Solicitor for the 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:
22 OCTOBER 2024
THE COURT ORDERS:
1.That the mother shall have parental responsibility and sole decision making for the child, X born in 2015 (“the child”), including but not limited to:
(a)education;
(b)religious and cultural upbringing;
(c)health;
(d)residence; and
(e)name.
2.That the mother shall inform the father and paternal grandmother of any major long-term decisions as defined in Order 1 hereof, within fourteen (14) days of that decision having been made by the mother.
3.That the child shall reside with the mother from the first Sunday after the end of the term four (4) gazetted school year in 2024.
4.That pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”), Ms D be requested to explain these Orders to the child with such request to be communicated by the Independent Children’s Lawyer and accompanied by a copy of the Reasons for Judgment delivered 22 October 2024.
5.That the child spend time with the father and the paternal grandmother, unless otherwise agreed:
(a)for one (1) seven-day period in January 2025 as agreed and failing agreement from 12.00pm on Saturday, 4 January 2025 until 12.00pm on Saturday, 11 January 2025;
(b)commencing from the gazetted school term one (1) in 2025 for the fifth weekend of each school term from 3.00pm on Friday until 4.00pm on Sunday;
(c)for the first week of the school holidays at…
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- Case
- [2024] FedCFamC1F 697
- Decision Date
CaseChat Overview and Summary
The court had to consider the best interests of the child in light of the child's medical needs, the history of conflict between the mother and the paternal grandmother, and the father's suitability for primary care. The court concluded that the mother should have parental responsibility and sole decision-making for the child, including decisions related to education, religious and cultural upbringing, health, residence, and name. The court ordered that the child reside with the mother from the first Sunday after the end of the term four school year in 2024. The court also established a detailed schedule for the child to spend time with the father and the paternal grandmother, with specific times and locations for changeovers. Additionally, the court mandated regular communication between the child and both the father and the paternal grandmother, and set out procedures for the exchange of information and authorities between the parents.
In its reasoning, the court emphasised the need to protect the child from the ongoing conflict between the mother and the paternal grandmother, while also ensuring that the child maintained meaningful relationships with both parents. The court considered the therapeutic needs of the child and directed the mother to continue with certain medical treatments and counselling. The final orders also included provisions to restrict contact and communication between the parties and to ensure the child's privacy and safety. The Independent Children's Lawyer was discharged after three months from the date of the orders.
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:
22 OCTOBER 2024
THE COURT ORDERS:
1. That the mother shall have parental responsibility and sole decision making for the child, X born in 2015 (“the child”), including but not limited to:
(a) education;
(b) religious and cultural upbringing;
(c) health;
(d) residence; and
(e) name.
2. That the mother shall inform the father and paternal grandmother of any major long-term decisions as defined in Order 1 hereof, within fourteen (14) days of that decision having been made by the mother.
3. That the child shall reside with the mother from the first Sunday after the end of the term four (4) gazetted school year in 2024.
4. That pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”), Ms D be requested to explain these Orders to the child with such request to be communicated by the Independent Children’s Lawyer and accompanied by a copy of the Reasons for Judgment delivered 22 October 2024.
5. That the child spend time with the father and the paternal grandmother, unless otherwise agreed:
(a) for one (1) seven-day period in January 2025 as agreed and failing agreement from 12.00pm on Saturday, 4 January 2025 until 12.00pm on Saturday, 11 January 2025;
(b) commencing from the gazetted school term one (1) in 2025 for the fifth weekend of each school term from 3.00pm on Friday until 4.00pm on Sunday;
(c) for the first week of the school holidays at the conclusion of the gazetted school terms one (1), two (2) and three (3), from 9.00am on the Saturday immediately after the school term until 9.00am on the following Saturday; and
(d) commencing the end of term four (4) 2025, for a block of two (2) weeks during the end of term four (4) school holidays (the Christmas school holidays) as follows:
(i) In even numbered years from 9.00am on the fourth Saturday until 9.00am on the sixth Saturday; and
(ii) In odd numbered years from 9.00am on the first Saturday until 9.00am on the third Saturday.
6. That all changeovers for the school holidays shall occur at B Supermarket and changeovers for weekend time shall time occur at B Supermarket at the commencement of time and at McDonalds Restaurant Suburb V at the conclusion of time, unless otherwise agreed.
7. That the child shall, commencing the 2025 school year and thereafter, communicate with the paternal grandmother and father between 6.00pm and 6.30pm alternate Sunday on the following basis:
(a) The call shall be initiated to a mobile number identified in writing as suitable within fourteen (14) days of this Order;
(b) The mother shall ensure the mobile device used by the child is charged and in a mobile reception area at the time scheduled for such calls; and
(c) All telephone calls shall be in private and unrecorded.
8. That the mother shall administer to the child any medication prescribed for the child by Dr N or such other child and adolescent Psychiatrist, Paediatrician, or health professional from time to time.
9. That each parent shall ensure that both prescription medication and instructions for use travels with the child at changeovers.
Exchange of information and authorities
10. That for the purposes of these Orders, save in the event of an emergency, the parents are to communicate by email.
11. That the mother and father shall exchange within seven (7) days an email address and telephone number at which they can be contacted in the event of an emergency or the necessity to exchange information about the child.
12. That each parent shall advise the other within forty-eight (48) hours of any change to their residential address or contact details.
13. That within seven (7) days of the mother attending an appointment for the child with any medical specialist, the mother shall notify the father by email of the name and contact details of the medical specialist.
14. That the mother authorises, by this Order, the schools attended by the child, to give the father information about the child’s educational progress and other school related activities and supply him with copies of school reports, newsletters, letters and general notices, photographs, certificates and awards obtained by the child (at the father’s cost).
Therapeutic support
15. That in the event it is impractical for the mother to continue the child’s treatment with Dr N, then the mother shall request from Dr N a referral for the child to the following treating professionals who are located in a geographical area closer to where the mother and child live:
(a) a Paediatrician or a child and adolescent Psychiatrist; and
(b) a child Psychologist,
and the mother shall then attend upon her general practitioner for the purpose of obtaining the required referral from the general practitioner to those professionals.
16. That the mother shall take all steps to continue her treatment with a Psychologist for counselling after the conclusion of her probation period by requesting her general practitioner provide an additional or advanced mental health care plan after her current mental health care plan expires.
17. That in addition to Order 15 hereof, the mother shall request the first available appointment with the Psychiatrist and shall attend all such appointments as recommended by such Psychiatrist.
18. That for the purposes of these Orders, the mother is permitted to and is to provide to:
(a) the child’s treating Paediatrician, or Psychiatrist and Psychologist a copy of all reports in these proceedings prepared by Dr W and Ms D;
(b) provide authority to the child’s treating Paediatrician, Psychiatrist and Psychologist to request a copy from Dr N of her clinical notes, reports and correspondence as the child’s current treating psychiatrist; and
(c) to her own Psychiatrist and Psychologist a copy of the reports prepared by Dr W and Ms D.
19. That by this Order, the mother authorises the father to obtain information from any medical specialist attended upon by the child, at his cost and subject to any privacy laws or procedures implemented by such medical practice.
20. That any psychological or other counselling attended by the child, the mother and/or the child and the mother jointly is to be non-reportable.
Restraints
21. That during the time the child is with either parent or the paternal grandmother, each parent and the paternal grandmother shall:
(a) respect the privacy of the other parent/paternal grandmother and not question the child about the personal life of the other parent/paternal grandmother and use their best endeavours to ensure that other persons not question the child about the personal life of the other parent/paternal grandmother;
(b) speak of the other parent/paternal grandmother respectfully and use their best endeavours to ensure that other persons speak of the other parent/paternal grandparent respectfully; and
(c) not denigrate or insult the other parent/paternal grandmother, or any members of their respective families, or any associate or partner of the other parent/paternal grandmother, in the presence or hearing of the child and use their best endeavours to ensure that other persons do not denigrate or insult the other parent/paternal grandmother or any members of their respective families, or any associate or partner of the other parent/paternal grandmother in the hearing or presence of the child.
22. That in the event the paternal grandmother files any further Application initiating proceedings within twelve (12) months from the date these Orders, the Application be listed before the Honourable Justice Baumann for the purposes of determining issues in relation to s 65DAAA of the Act.
23. That the current interim Orders shall continue in full force and effect until the first Saturday of the term four (4) school holidays 2024, after which these final Orders shall apply.
24. That the Independent Children’s Lawyer is discharged at the expiry of three (3) months from the date of these Orders.
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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