Ardle-Gerder and Lambourgh

FAMILY COURT OF AUSTRALIA

ARDLE-GERDER & LAMBOURGH

[2011] FamCA 330

FAMILY LAW – CHILDREN – where children spend their time.

APPLICANTS:

Ms Ardle-Gerder
Mrs Gerder

RESPONDENT:

Mr Lambourgh

INDEPENDENT CHILDREN’S LAWYER:

Ms Helen Webber

FILE NUMBER:

SYC

1214

2009

DATE DELIVERED:

23 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

31 January 2011,
1,2,3,4 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Kinchington & Associates

COUNSEL FOR THE RESPONDENT:

Mr Lambourgh appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

DX 5 SYDNEY

Orders

1.1 That the parties do all things and execute all documents required to ensure that the child B, born on … December 2005 (‘the child’) be known henceforth exclusively by the surname ‘GERDER-LAMBOURGH’.
1.2That a Registrar is authorised to execute any such document on behalf of the mother.
That the father has sole parental responsibility for the child.
That the maternal grandmother has responsibility for decisions as to the child’s day-to-day care, welfare and development during periods when the child is spending time with her and the father have that responsibility at all other times.
That the father:
4.1notify the maternal grandmother of any proposed decision relating to the long term care and welfare of the child, including:
4.1.1schools which she attends from time to time
4.1.2her religious upbringing
4.1.3elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues
4.1.4change of residential address from time to time
4.2ensure that such notification is given in writing no less than 28 days before he makes a final decision
4.3take into consideration any views which she expresses in respect of such issues.
That the child live with the father.
That, subject to order 9, the child spend time with the maternal grandmother as follows:
6.1from 9:00am until 5:00pm on 4 (four) consecutive Sundays commencing on the first weekend after the date of these orders
6.2During school term, on a two week cycle as follows:
6.2.1in week 1, from after school on Thursday (or 3:00pm on a non-school day) until the start of school on Friday (or 9:00am on a non-school day)
6.2.2in week 2, from after school on Friday (or 3:00pm on a non-school day) until the start of school on the following Monday (or 9:00am on a non-school day), however, if the Monday is a public holiday, the child’s time with the maternal grandmother shall continue until the start of school on the Tuesday (or 9:00am on a non-school day)
6.2.3with such two week cycle to commence five weeks following the date of these orders and thereafter to recommence on the first week of each school term in even numbered years and the second week of each school term in odd numbered years
6.3In the first school holiday period following the date of these orders, for 5 (five) consecutive nights as agreed between the father and the maternal grandmother in writing and, failing such agreement, from 10:00am on the first Sunday until 10:00am on the following Friday.
6.4Thereafter during the school holiday periods at the end of Terms 1,2 and 3, unless otherwise agreed in writing between the father and the maternal grandmother, as follows:
6.4.1in odd numbered years, from after school on the last day of the school term until 4:00pm on the second Saturday of the school holiday period
6.4.2in even numbered years, from 4:00pm on the second Saturday of the school holiday period until the start of school on the first day of the new school term
6.5During the school holiday periods at the end of Term 4, unless otherwise agreed in writing between the father and the maternal grandmother, as follows:
6.5.1from 10:00am on 28 December until 10:00am on 11 January in odd-numbered years and
6.5.2from 10:00am on 11 January until 10:00am on 25 January in even-numbered years
6.6For Christmas, unless otherwise agreed in writing between the father and the maternal grandmother, as follows:
6.6.1from 10:00am on Christmas Eve until 10:00am on Christmas Day in odd-numbered years and
6.6.2from 10:00am on Christmas Day until 10:00am on Boxing Day in even numbered years.
6.7On the child’s birthday, unless otherwise agreed in writing between the father and the maternal grandmother, as follows:
6.7.1if the child is attending school that day and is not otherwise spending time with the maternal grandmother, from after school until 6:00pm
6.7.2if the child is not attending school that day and is not otherwise spending time with the maternal grandmother, from 9:00am until 11:00am.
6.8At such other time as may be agreed between the father and the maternal grandmother.
That the child spend time with the mother at Suburb C Contact Centre as follows:
7.1From 4:00pm until 6:00pm on the first Tuesday of each calendar month, with the father to deliver the child to and collect her from the contact centre.
7.2From 10:00am until 12:00noon on the Saturday of the first weekend of time with the maternal grandmother in each calendar month, with the maternal grandmother to deliver the child to and collect her from the contact centre.
For the purposes of implementation of order 7:
8.1The father, the mother and the maternal grandmother shall make an appointment for an assessment at the Suburb C Contact Centre within 21 days of the date of these orders.
8.2The father and the maternal grandmother are relieved from the obligation to deliver the child to the contact centre if the mother fails to attend on 3 (three) consecutive occasions and she is not an inpatient at a hospital or rehabilitation centre.
8.3The father, the mother and the maternal grandmother are at liberty to agree in writing on variations to the days and times of the child’s attendance at the contact centre, in consultation with its staff.
That the child’s time with the maternal grandmother pursuant to order 6 above be suspended as follows:
9.1if Fathers Day falls on a day that the child is otherwise to spend time with the maternal grandmother, this time will end at 6:00pm on the previous day
9.2if the child’s birthday falls on a day that she is not attending school and would not otherwise spend any time with the father, from 9:00am until 11:00am.
and the child shall spend time with the father during those periods.
That for the purposes of facilitating the child’s spending time with the maternal grandmother pursuant to order 6 above or with the father pursuant to order 9 above, unless otherwise agreed between the father and the maternal grandmother in writing, changeovers shall take place as follows:
10.1at the child’s school on school days
10.2on non-school days when the child is to spend time with the maternal grandmother pursuant to order 6 above:
10.2.1the maternal grandmother shall be responsible for collecting the child from the father’s home at the end of all such periods
10.2.2the father shall be responsible for collecting the child from the maternal grandmother’s home at the end of all such periods.
10.3When the child is to spend time with the father pursuant to order 9 above:
10.3.1the father shall be responsible for collecting the child from the maternal grandmother’s home at the start of all such periods
10.3.2the maternal grandmother shall be responsible for collecting the child from the father’s home at the end of all such periods.
That the child have telephone communication with the father, the mother and the maternal grandmother at any reasonable time as the child may request, with the father or the maternal grandmother, as the case may be, to facilitate the making of such telephone calls.
That the child have telephone communication with the father, between 6:30pm and 7:00pm every Wednesday, provided that the child is not spending time with the father on that day.
That the child have telephone communication with the maternal grandmother, between 6:30pm and 7:00pm every Wednesday, provided that the child is not spending time with the maternal grandmother on that day.
That the father and the maternal grandmother, as the case may be, shall take all reasonable steps to ensure that the child has privacy during telephone conversations with any of the other parties.
That the maternal grandmother is at liberty to communicate with the child by way of letters, cards and gifts and the father will hand such communication to the child unopened.
That the mother shall be at liberty to communicate with the child by way of letters, cards and gifts which the father shall check and pass on to her if he deems the contents appropriate.
That the father shall be restrained from allowing Mr D:
17.1to be left alone with the child unless another adult is present.
17.2to stay overnight at his home while the child is present.
That the mother is restrained from consuming alcohol, in any form, for 24 hours prior to and during any time that the child spends with her.
That the mother is restrained from being present when the child is spending time with the maternal grandmother.
20.1 That the maternal grandmother is restrained from allowing the mother to be present when the child is spending time with her.
20.2That the maternal grandmother is restrained from providing keys to her home to the mother.
That the father, the mother and the maternal grandmother are restrained from making critical or derogatory remarks about the other parties in the presence or hearing of the child and that each of them use their best endeavours to ensure that no third party makes such remarks in the presence or hearing of the child.
That the father and the maternal grandmother are both entitled to attend all events involving the child including sporting fixtures, extra-curricular activities, school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, canteen duties and social functions, and the party who has the child in their care on the day of such activity will be responsible for her day-to-day care at such event and her transportation to and from that event.
That the father and the maternal grandmother advise each other of their current contact telephone numbers (including both landline and mobile phone number if applicable) and inform each other of any changes to these details with 7 (seven) days of any such change.
That the father shall ensure that the maternal grandmother is informed, as soon as practicable, of:
24.1any medical problems or illnesses suffered by the child while in the father’s care
24.2any medication that has been prescribed for the child
24.3any social, school, sporting or extra-curricular activities in which the child is to participate
24.4any change to the residential address of the father and particulars of any other persons who reside at such address
24.5any other matter relevant to the child’s welfare.
The maternal grandmother shall ensure that the father is informed, as soon as practicable, of:
25.1any medical problems or illnesses suffered by the child while in the maternal grandmother’s care
25.2any medication that has been prescribed for the child
25.3any change to the residential address of the maternal grandmother and particulars of any other persons who reside at such address
25.4any other matter relevant to the child’s welfare
That the father inform the maternal grandmother in writing as soon as practicable of any appointments made for the child with any specialist medical practitioner, including any psychologist, psychiatrist, counsellor or therapist (“treating specialist”).
That the maternal grandmother be permitted to attend on any appointment referred to in order 26 above and the father shall do all things necessary to authorise and direct any treating specialist to provide to her any and all information in relation to the child’s condition and/or treatment.
That within 14 days of the date of these orders and within 14 days of the child’s subsequent enrolment at any school, the father do all acts and sign all documents necessary to authorise the principal thereof to provide the maternal grandmother with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the maternal grandmother in relation to the child.
That the father furnish to the maternal grandmother, with 7 (seven) days of receipt of same, copies of all order forms for school photographs of the child.
That during any period referred to in these orders, in the event of the child being hospitalised or receiving medical attention, the party in whose care she is at the time, shall notify the other party as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That the father is authorised to apply to the Registrar of Births, Deaths and Marriages in NSW to have his name registered as the father of the child.
That the Independent Children’s Lawyer shall take all reasonable steps to serve a sealed copy of these orders upon the Registrar of Births, Deaths and Marriages in NSW as soon as practicable.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment under the pseudonym Lambourgh & Ardle-Gerder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1214 of 2009

Ms Ardle-Gerder
Mrs Gerder

Applicants

And

Mr Lambourgh

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Lambourgh and Ms Ardle-Gerder are the parents of a little girl, B, who was born in December 2005 and is now 5 years old. The other party to the proceedings is the child’s maternal grandmother, Mrs Gerder. In tragic circumstances concerning the mother, to which I refer below, the dispute about parenting arrangements for the child was essentially between the father and the maternal grandmother. The mother did not participate in the proceedings in any meaningful way.
Dr E, the single expert, set out in his report a lengthy history of the mother’s hospital admissions and police events arising from her chronic alcoholism. He referred to childhood sexual abuse of the mother by her stepfather and a car accident in 1994, which caused her to suffer permanent pain. It is not necessary that I canvass all of these very sad events in these reasons.
Dr E summarised the mother’s difficulties in these terms:
In my view her dependency on alcohol and drugs is so severe and uncontrolled that she cannot be relied upon to properly supervise and care for the child for anything but the briefest of periods (possibly for even less than an hour), even when she is not affected by alcohol or drugs. An additional problem for even these times is that in my view she has a significant cognitive problem due to alcohol associated brain damage which almost certainly affects her reactivity, impulsiveness and judgment, all critical ingredients in responding to inevitable parenting issues.
Although the mother was a party to the proceedings she did not give evidence, cross-examine any witness or make submissions. She was unrepresented and seemed to have a very limited grasp of procedure and the issues before the court.
The mother frequently became very distressed and left the courtroom, usually for long periods. On a couple of days she did not attend the trial at all. I record my thanks to the kindly Salvation Army officer who did her best to assist the mother throughout the trial.
Counsel for the Independent Children’s Lawyer (‘the ICL’) informed me that he had spoken to the mother and tried to establish her position in the proceedings. He said that he had experienced considerable difficulty but believed that she sought orders that the child live with the maternal grandmother and spend time with her under her mother’s supervision. There was no submission from the mother in support of this proposal.
At the start of the trial, counsel for the maternal grandmother informed me that she conceded that the child should continue to live with the father. During the course of the hearing the remaining issues narrowed substantially.
By the end of the trial only the following issues remained for determination:
1.Should the father have sole parental responsibility, on the basis that he be required to consult with the maternal grandmother about the child’s education, religious upbringing, health care issues and changes of address? Alternatively, should the father and maternal grandmother share paternal responsibility?
2.Should the child spend time with the maternal grandmother from 9:00am until 5:00pm on consecutive Sundays on four or eight occasions before overnight time commences?
3.Should alternate weekend time with the maternal grandmother commence at the conclusion of school on Friday or 12:30pm on Saturday?
4.Should weekend time with the maternal grandmother include any Monday which is a public holiday?
5.Should block school holiday time in odd-numbered years conclude at 4:00pm on the second Friday or Saturday?
6.Should there be an injunction to restrain the maternal grandmother from allowing the mother to live in her home?
7.What time should the child spend with the mother, and under what conditions?
8.By what surname should the child be known?

Background

The maternal grandmother was born in 1937 and is now 73 years old. Her unchallenged evidence was that she enjoys good health.
The father was born in 1958 and is now 52 years old. He has a child of a previous relationship, Mr D who is now 18 years old.
On 1 May 2008 the father began to live with his current partner, Ms F. She was born in 1966 and is now 44 years old. Ms F has no children.
The mother was born in 1966 and is now 44 years old. As noted she suffered childhood sexual abuse at the hands of her stepfather, a fact which she disclosed to the maternal grandmother in the mid-1980s. No criminal proceedings were instituted against the stepfather, Mr G, who died in 2004.
The records which Dr E summarised indicate that the mother’s substance abuse problems began in the mid-1990s. In his oral evidence Dr E said words to the effect:
She is living a really high risk lifestyle. Her alcoholism is out of control, she has brain damage. She could die in an accident, in a fight, kill herself or poison herself with the toxic substances which she ingests.
Dr E noted that the mother drank methylated spirits and nail polish remover on occasions.
The father and mother met at their workplace in about 2002 and began to live together at the maternal grandmother’s home in Suburb H in mid-2004. They jointly purchased a home at I Street, Suburb J in February 2005. The maternal grandmother provided part of the purchase money, which was later repaid to her.

Sadly, the mother’s capacity to care for the child quickly deteriorated due to her alcoholism. The father and the maternal grandmother disagreed about the roles which they each played in caring for the child after the deterioration in the mother’s capacity. It is not necessary that I now attempt to resolve this factual issue, as the father is the unchallenged primary carer.
On any view the maternal grandmother played a significant role in the child’s care. It seemed to be common ground that she was the primary carer for several years prior to 17 March 2010. On that date, interim orders were made which provided that the child live with the father and spend supervised time with the maternal grandmother.
The parents’ relationship finally broke down on 4 March 2008. In May 2008 the father began to spend time with the child from 3:30pm until 6:30pm each Monday; from 4:00pm until 6:30pm each Wednesday and from 9:00am until 6:30pm each Saturday. This time then extended to include an overnight stay each Friday.
In July 2008 the mother and father sold the Suburb J property and repaid a sum of $100,000 to the maternal grandmother. From her perspective, the dealings with this property caused a deterioration in her relationship with the father. They agreed that they once related well to each other.
On 27 February 2009 the father retained the child, despite the existing arrangements. On 9 March 2009 the Federal Magistrates Court ordered that he return the child to the maternal grandmother.
On 4 March 2009 the maternal grandmother and the mother alleged, in a jointly sworn affidavit, that the child complained to them of being touched in the genital area by Ms F. This allegation was the first of a series of complaints of sexual abuse of the child by a number of people on both sides of the dispute.
The father alleged that the child complained of sleeping and showering with one Mr K at the home of the maternal grandmother. He further alleged that she displayed sexualised behaviour. As well, he expressed concerns about the mother’s behaviour in the child’s presence while intoxicated and the maternal grandmother’s ability to protect her.
On 13 July 2009 the father swore an affidavit in which he repeated his alleged concerns in relation to Mr K. He also restated his allegations of sexualised behaviour on the part of the child.
On 11 August 2009 this court made interim orders by consent. These orders provided that the child live with the maternal grandmother and spend time with the father from 3:00pm until 5:00pm each Wednesday, extending to 8:00am on Thursday on the last Wednesday of each month, and from 4:00pm on Friday until 5:00pm on Sunday each weekend.
These orders also provided for the child to spend supervised time with the mother as agreed between her and the maternal grandmother. There were a number of restraints on the mother’s involvement with the child on these occasions.
In August 2009 the maternal grandmother notified the Department of Human Services (‘DHS’) that the child had complained that Mr D hurt her by touching her genital area. Due to this notification, two officers of a Joint Investigation Response Team (‘JIRT’) interviewed the child on 2 September 2009. The child made no disclosure of abuse and the report was found to be unsubstantiated.
On 21 January 2010 the maternal grandmother made another complaint to DHS of sexual abuse of the child by Mr D. On 14 February 2010 the child was subjected to a medical examination, the results of which were found to be inconclusive. JIRT officers again interviewed the child on 17 February 2010. The maternal grandmother provided to these officers a video which she had made of the child masturbating, as Mr D allegedly had taught her. Police officers took out a provisional AVO against Mr D.
The father alleged that on 19 February 2010 the child complained to him that the maternal grandmother had touched her inappropriately in the genital area. Because of this allegation the child was interviewed by JIRT for the third time on 22 February 2010. The Magellan report dated 20 May 2010 noted that the child “presented as very confused in the interview, constantly changing her mind about statements”. These JIRT officers concluded that no allegation of abuse was substantiated.
The father refused to return the child to the maternal grandmother after her alleged complaint of 19 February 2010. On 26 February 2010 a Judicial Registrar heard competing applications for interim orders. The mother did not participate in this hearing, as she was an inpatient at a rehabilitation centre. The Judicial Registrar ordered the child to remain in the father’s care until 2 March 2010.
On 3 March 2010 interim orders were made which effectively reinstated the arrangements as at 11 August 2009. The father unsuccessfully sought a stay of these orders, pending a review of the interim decision.
On 17 March 2010 a Judge made interim orders that the father have sole parental responsibility; that the child live with him and spend time with the maternal grandmother and the mother under supervision. These orders further provided that the father be restrained from permitting Mr D to reside in the same house as the child or to be in her company, unless an adult was present. Since these orders the maternal grandmother has spent time with the child under the supervision of a professional person, Ms L.

The Allegations of Sexual Abuse

The ultimate proposals of the father, the maternal grandmother and the ICL are all inconsistent with a belief that the child is at an unacceptable risk of sexual abuse in either household. There is to be unsupervised time with the maternal grandmother and the child will live in the household of Ms F.
It was agreed that the father will be restrained from leaving the child alone with Mr D or permitting him to stay overnight when she is in his home. There was a large volume of evidence of Mr D’s disturbed behaviour at school, which is sufficient to warrant these restrains. As these orders will be made by consent, it is unnecessary to detail this conduct.
I accept Dr E’ assessment of the validity of the allegations of sexual abuse. He reported:
The materials I have reviewed do not indicate to me that there is an unacceptable risk of sexual abuse in either household. I am of the view it is difficult to find an unacceptable risk of sexual abuse by [Mr D] from the grandmother’s material. The more obvious conclusion is that the child’s statements are the result of interrogation by [Mrs Gerder]. The allegations which the child makes about her grandmother appear to be a reversal of the allegations that she made about [Mr D]. I have little doubt that they are the result of interrogation by her father in one form or another, possibly intentional. I understand that he has seen a reasonable account of the JIRT material and if that is the case, it seems remarkable that he has not arrived at this obvious conclusion by now and been more relenting about his insistence on the grandmother’s time with the child being supervised.
It is clear that both [Mrs Gerder] and [Mr Lambourgh] have a deep and abiding distrust of each other for a number of reasons including conflict over major financial transactions. While I am of the view that [Mrs Gerder] has been quite scrupulous about the account that she has recorded and given, it also seems that she has interpreted what the child has said opportunistically and also that she has probably basically interrogated the child fairly relentlessly and in quite a leading way. Her prejudice against [Mr Lambourgh] has probably blinded her to the failings of her methodology and conclusions, and seems rather hypocritical when compared with her defense of her husband, who abused [Ms Ardle-Gerder]. However I think that [Mr Lambourgh] has probably acted somewhat more disingenuously, and I find it difficult to accept that he truly believes the allegations that he has made.

Approach To These Proceedings

In determining the outstanding issues in relation to the child’s care, I am asked to make parenting orders. The provisions of Part VII of the Family Law Act thus oblige me to apply a presumption that it is in the child’s best interests for her mother and father to have equal shared parental responsibility: section 61DA(1). This presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for the mother and father to have equal shared parental responsibility: section 61DA(4).
Sadly, it is abundantly clear that it is not in the child’s best interests for her mother and father to have equal shared parental responsibility. The evidence of Dr E establishes without doubt that the mother lacks the capacity to exercise parental responsibility.
The consequence is that I am able to determine the outstanding issues on the basis of an examination of what arrangements are in the child’s best interests. I have regard to the objects of and principles underlying Part VII of the Family Law Act and the considerations set out in section 60CC thereof. I will now consider in turn each outstanding issue.
Parental Responsibility
The ICL proposed that the father have sole parental responsibility, on condition that he give to the maternal grandmother 28 days’ notice of any proposed major decisions as to the child’s education, religious upbringing, healthcare and place of residence. He would be required to take into consideration her views on these issues.
The father sought that he have sole parental responsibility but he did not oppose the ICL’s proposal that he notify the maternal grandmother of impending major decisions and take her views into consideration. The maternal grandmother sought that she and the father share parental responsibility.
It is common ground that the child will spend most of her time with the father and Ms F, who will largely fulfil the maternal role in her life. That observation is in no way intended to diminish the very important role which the maternal grandmother previously played in the child’s life and the great significance of her continuing involvement.
It is timely to reflect on Dr E’s evidence as to the importance of the maternal grandmother in the child’s life. He opined that she will have a relationship with her mother “for identity purposes but she will have a sense of belonging to her mother’s family”. He referred to research which “shows the lengths to which adopted children will go in order to connect with family”. Dr E added that “the maternal grandmother’s age means that there could be limitations on her opportunity to develop that repository of memories”.
The thrust of this aspect of Dr E’s evidence is that the child’s sense of belonging to her maternal family and store of memories of that side of her life will derive from her maternal grandmother. It is important that this opportunity be seized while the maternal grandmother is in a position to provide this benefit to the child.
This evidence persuades me that it would be in the child’s best interests for her to have a sense that the maternal family is interested in and concerned about major decisions affecting her upbringing. On the other hand, there is force in the submission of the ICL as to the practicality of shared parental responsibility. It is true that the relationship of the father and the maternal grandmother is strained at present. It is likely that there will be conflict if they try to make joint decisions about the child’s welfare.
On balance it seems to me that the ICL’s proposal for parental responsibility is most likely to advance the child’s interests. The maternal grandmother will be involved in major decisions about the child’s life but not in a way which is likely to expose the child to damaging conflict.
Introduction of Overnight Time with the Maternal Grandmother
The ICL proposed that the child spend 4 periods of weekly daytime unsupervised periods with the maternal grandmother before overnight stays are introduced. The maternal grandmother accepted this proposal but the father sought that there be 8 weekly unsupervised day periods.
Dr E considered that there should be an introductory period before the commencement of overnight time. He was asked to comment on the maternal grandmother’s proposal that the child spend 4 nights per fortnight, half of the short school holidays and 2 weeks during the Christmas school holidays with her. He said “she could not jump straight into that but it would only take a couple of months”.
From April 2010 to date, the child has spent supervised time with the maternal grandmother for 4 hours each Sunday and 5 hours each Tuesday. The maternal grandmother is thus a person who is entirely familiar to the child and who was her primary carer for a significant period. The child lived in the maternal grandmother’s home for a substantial portion of her life. For these reasons I see no basis to extend day-only contact as sought by the father.

3 & 4 Commencement and Conclusion of Alternate Weekend Time

The ICL and the maternal grandmother proposed that alternate weekend time commence at the conclusion of school on Friday. The father sought that this time begin at 12:30pm on Saturday, apparently to accommodate the child’s soccer games on that morning. The ICL and the maternal grandmother proposed that alternate weekends conclude at the commencement of school on Monday morning. The father sought that this time conclude at 5:00pm on Sunday.
On behalf of the maternal grandmother it was submitted that school changeovers would keep the parties at a distance from each other and thus reduce the potential for the child to be exposed to conflict. It was further submitted on behalf of the maternal grandmother that the child’s time with her should not “be eroded by activities which she has not arranged”.
I am mindful of Dr E’s evidence that the child’s sense of belonging to her mother’s family and her store of memories will come almost entirely from the maternal grandmother. If the mother had been in a position to fulfil a parental role, and absent any other reason to the contrary, it is highly likely that each of she and the father would have the opportunity to be involved in the child’s school life.
It seems to me that the child will benefit if the maternal grandmother comes to know her teachers and friends at school. Her school life would be an added dimension which she could share and enjoy with her maternal grandmother. There is no other opportunity for the child’s maternal family to be involved in this significant aspect of her life.
I am not persuaded that a sporting commitment of a 5 year old child comes close to matching this benefit. In any event, there is no guarantee that the child will persist with soccer. Her extracurricular activities are likely to change from time to time.
The same reasoning leads me to the view that alternate weekend time should conclude at the beginning of school on Monday or Tuesday, in the case of a long weekend. It is most unlikely that every Monday public holiday would fall on a weekend when the child is with the maternal grandmother. I see no reason why she should be deprived of the opportunity to have long weekends with both her father and maternal grandmother.
The Conclusion of Block School Holiday Time
The ICL and maternal grandmother proposed that block time conclude at 4:00pm on the second Saturday of short school holidays in odd-numbered years. The father sought that these periods conclude at 4:00pm on the second Friday. The dispute amounted only to an additional night with the maternal grandmother.
I doubt that the child would attach much significance at all to this detail of school holiday time with her maternal grandmother. No particular arguments were put in favour of or against either of these alternatives. I will adopt the proposal of the ICL.
What Time Should the child Spend With the Mother
The ICL, the maternal grandmother and the father agreed that the child’s time with the mother should take place under professional supervision. The mother seemed to seek that the child spend time with her under the supervision of the maternal grandmother. This arrangement is impossible, as the maternal grandmother is unwilling to act as supervisor. In my view the maternal grandmother’s position in this regard is entirely appropriate and reasonable.
Dr E recommended that the child’s time with the mother take place at Suburb C Contact Centre, as its staff are well equipped in “dealing with people of the mother’s profile”. He said that he has experience with their ability to control situations involving people who suffer from difficulties similar to those of the mother.
Dr E recommended that the father take the child to the contact centre once per month on a week day and the maternal grandmother once per month on a weekend. He suggested that their obligations be suspended automatically if the mother fails to attend on a specified number of occasions. I will make orders in accordance with Dr E’s recommendation.
Restraint on the Maternal Grandmother Allowing the Mother to Live in her Home
The father sought an order to restrain the maternal grandmother from allowing the mother to live in her home. The ICL and the maternal grandmother proposed that she be restrained from allowing the mother to be present during any period when the child is in her care.
The maternal grandmother gave clear and cogent evidence that she would call the police if the mother attended her home, and refused to leave, on any occasion when the child was present. I have no reason to doubt her word, as she has summoned police due to the mother’s behaviour in the past.
On behalf of the maternal grandmother, it was pointed out that the child will be absent from her home for 10 nights per fortnight. I was informed that the mother does not have a key to the premises. Further, I was informed that the maternal grandmother would consent to an order that she not provide a key to the mother. Not surprisingly, the maternal grandmother wishes to continue to provide support for the mother and she shall have that opportunity.
I am satisfied that the restraints proposed by her and the ICL are sufficient for the child’s protection.

By What Surname Should the child be Known?

The ICL proposed that the child be known by the surname “Ardle-Gerder-Lambourgh”. The father sought that she be known as “Lambourgh” and, in fact, he unilaterally enrolled her under that name at school. The maternal grandmother seemed to accept Dr E’s recommendation that the child should use a surname which includes “Gerder” and “Lambourgh”.
Dr E opined that the child’s surname “should reflect her family links” and that the maternal grandmother’s surname is part of her identity. He considered that she should not be told about Mr Gerder’s abuse of the mother.
I will act on Dr E’s recommendation. It seems to me that a hyphenation of the names “Ardle”, “Gerder” and “Lambourgh” would be cumbersome and unwieldy. I will order that the child be known for all purposes by the surname “Gerder-Lambourgh”.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 23 February 2011.

Associate:

Date: 23 February 2011

[2011] FamCA 330

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Jurisdiction

Remedies

Injunction

Procedural Fairness

Standing

Consent