FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Livvy & Kash (No 3) [2024] FedCFamC1F 913
File number(s): BRC 16626 of 2021 Judgment of: BAUMANN J Date of judgment: 3 December 2024 Catchwords: FAMILY LAW – APPLICATION FOR STAY –Where appeal and cross appeal has been filed – Where there is no basis upon which to order a stay Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
House v The King [1936] HCA 40-55 CLR 499
Livvy & Kash [2023] FedCFamC1F 1014
Livvy & Kash (No 2) [2024] FedCFamC1F 697
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 3 December 2024 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Litigant in person Solicitor for the Second Respondent: O’Hare Law 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: MR MENZIES
First Respondent
MS KASH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That the Application in a Proceeding filed 20 November 2024 be dismissed.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Livvy & Kash has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
On 22 October 2024, the Court made some final parenting orders in this matter relating to a child, X. The history of X’s care is set out in the Reasons for Judgment (see Livvy & Kash (No 2) [2024] FedCFamC1F 697.
It has always been the paternal grandmother’s view that the child is at risk in the care of the mother, both in respect of drug use, the mother’s criminal record, the mother’s mental health and a reflection of earlier school performance.
The Reasons for Judgment, which built on earlier reasons (see Livvy & Kash [2023] FedCFamC1F 1014), identified and analysed the expert evidence that was available to the Court from Dr W, a consultant psychiatrist; the child's treating psychiatrist, Dr N; and the family report writer, Ms D, who had provided two reports, in…
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- Case
- [2024] FedCFamC1F 913
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether there was a basis upon which to order a stay of the orders. This involved weighing the potential impact of the new arrangements on the child's welfare against the need to maintain stability during the appeal process. The court considered the findings of its earlier judgment, which found that the mother had not adequately pursued her relationship with the child, and the criticisms of the mother from the paternal grandmother and father. Despite these factors, the court concluded that there was no basis for staying the orders, as the arrangements, including time between the child and the grandmother and the father, would be in place for at least 12 months if not stayed.
Baumann J dismissed the application for a stay, stating that the orders should continue to be put into force. The court's decision was based on the best interests of the child, acknowledging the significant change in arrangements and the need for stability during the appeal process. The court's reasons for judgment emphasised that it was well aware of the criticisms of the mother and the challenges in re-establishing the mother-child relationship. Ultimately, the court found that the orders as they currently existed should remain in effect.
The final order was that the application filed on 20 November 2024 be dismissed. The form of the order is subject to review and possible variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
BRC 16626 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS LIVVY
Applicant
AND:
MR MENZIES
First Respondent
MS KASH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
3 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS:
1. That the Application in a Proceeding filed 20 November 2024 be dismissed.
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
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
On this hypothetical timetable, therefore, if the orders are not stayed, then the arrangements in place, which of course include time between the child and the grandmother and the father each school term, and for holidays, would be in place for at least 12 months. CONSIDERATION As my Reasons for Judgment made clear, I found it was in the best interests of X to live with the mother and her siblings. In so doing, the Court was well aware that that would change the arrangements which had been in place, in the grandmother’s care, at least commencing from a decision made by a Senior Judicial Registrar in July 2022 which caused a significant change of arrangements and which was, during the trial process before me, maintained whilst the child’s relationship with the mother had a chance to be re-created. The Court was well aware of the issues whereby the mother had - and was properly criticised for - not pursued the time with her daughter in the way that she should have. That was taken into account. The Court was also alive to the very strong criticisms of the mother, which are still maintained by the paternal grandmother and shared by her son, the father. In consideration of all the factors, it is my decision that the stay application should be dismissed, which means that the orders as they currently exist will continue to be put into force.