Carrick & Lambert
[2024] FedCFamC2F 998
•30 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carrick & Lambert [2024] FedCFamC2F 998
File number(s): LNC 576 of 2021 Judgment of: JUDGE TURNBULL Date of judgment: 30 July 2024 Catchwords: FAMILY LAW — PARENTING — time with Father –– Father charged with serious criminal offences — Mother proposing he have indefinite supervised time — allegations of family violence — whether Father poses unacceptable risk to the child – whether the Mother’s parenting will be significantly impacted if the child spends unsupervised time with Father — Re Andrew argument — impact of the Father having time with the child upon Mother’s other children — whether the Mother ‘coached’ her other children to provide a negative view of the Father to the Expert — whether the child should live with the Father if found that the Mother is unable to promote a relationship with him. Legislation: Evidence Act 1995 (Cth)
Family Law Act1975 (Cth)
Cases cited: A v A (1998) FLC 92-800
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
B and B (1993) FLC 92-357
Bant & Clayton [2019] FamCAFC 198
Blatch & Archer [1774] 98 ER 969
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Boyce & Boyce [2015] FamCAFC 60
Briginshaw v Briginshaw (1938) 60 CLR 336
Dundas & Blake [2013] FamCAFC 133
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Helton v Allen [1940] HCA 20
Ho v Powell [2001] NSWCA 168
Isles & Nelissen [2022] FedCFamC1A 97
Isles & Nellison [2021] FedCFamC1F 295
Jones v Dunkel (1959) 101 CLR 298
Keane v Keane [2021] FamCAFC 1
Koyroyshs & Koyroyshs [2020] FamCA 626
Lavell & Lavell [2012] FamCA 34
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 36
M v M (1998) 166 CLR 69
Marvel & Marvel (No 2) [2009] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR (2010) 240 CLR 461
Murphy & Murphy [2007] FamCA 785
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Raymond & Raymond [2023] FedCFamC2F 1396
Re Andrew (1996) FLC 92-692
Robertson & Sento [2009] FamCAFC 49
Sedgley & Sedgley (1995) FLC 92-623
Shalhoub v Buchanan [2004] NSWSC 99
Stamatou & Stamatou [2022] FedCFamC1F 241
Withers & Russell [2016] FamCA 793
Division: Division 2 Family Law Number of paragraphs: 244 Date of last submission/s: 14 February 2024 Date of hearing: 23, 24 and 25 January 2024 and 12 and 14 February 2024 Place: Launceston Counsel for the Applicant: Mr Petersen Solicitor for the Applicant: Petersen Legal Counsel for the Respondent: Mr Verney Solicitor for the Respondent: Walsh Day Mihal Bassett Counsel for the Independent Children's Lawyer: Mr Trezise Solicitor for the Independent Children's Lawyer: McVeity Dean ORDERS
LNC 576 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CARRICK
Applicant
AND: MS LAMBERT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
30 JULY 2024
THE COURT ORDERS THAT:
1.All extant parenting orders are discharged.
2.Ms Lambert ('the Mother') have sole parental responsibility of the child X born in 2019 (‘the child’).
3.In exercising sole parental responsibility in accordance with Order 2, the Mother shall:
(a)inform Mr Carrick ('the Father') of any of any long term decision regarding any major long term issues relating to the child that require a decision and invite the Father to provide her with any views he has in relation to such decision for the child within seven (7) days of receiving a written request from the Mother to do so; and
(b)consider the Father's views and then;
(c)inform the Father of any decision made by her within seven (7) days of such a decision being made.
4.The child live with the Mother.
5.Commencing 2 August 2024 (unless an alternative starting date is agreed in writing) the child spend time with the Father as follows:
(a)On a semi supervised basis on four (4) occasions each alternate Friday from 2:45pm until 4:15pm with the first and last 15 minutes of each period to take place at the B Children's Contact Service;
(b)thereafter for four (4) occasions each alternate Saturday from 10:00am until 4:30pm;
(c)thereafter for four (4) occasions each alternate weekend from 10:00am Saturday until 4:30pm Sunday;
(d)thereafter, until the child commences full-time school, each alternate weekend from 4:30pm Friday until 4:30pm Sunday.
(e)From when the child commences full-time school, each alternate weekend from 4:30pm Friday until the commencement of the school day on the following Monday, (extended to begin on Thursday at 4.30pm or conclude on Tuesday at 9:00am if the Friday or Monday is a public holiday or non-school day);
(f)upon the child commencing time pursuant to order 5(d), during each gazetted school holiday period, the Father's time as set out in order 5(d) is extended to conclude at 4:30pm the following Wednesday; and
(g)upon the child commencing full-time school, for each of the child’s gazetted school holidays as follows:
(i)for one week in the first, second and third term gazetted school holidays, with the time to commence on the Friday at 4:30pm of the week the Father would otherwise spend with the child pursuant to Order 5(e), and conclude on the following Friday at 4:30pm;
(ii)for one half of the gazetted summer school holidays, on a week on/week off basis (Friday 4:30pm until the following Friday 4:30pm), commencing on the Friday of the week the Father would otherwise spend with the child pursuant to Order 5(e).
6.Notwithstanding any other Order, the Mother and Father shall spend time with the child on special occasions as follows:
Christmas
(a)with the Mother from 3:00pm on Christmas Eve until 3:00pm on Christmas Day and with the Father from 3:00pm Christmas Day until 3:00pm Boxing Day, in each even calendar year; and
(b)with the Father from 3:00pm on Christmas Eve until 3:00pm on Christmas Day and with the Mother from 3:00pm on Christmas Day until 3:00pm on Boxing Day in each odd calendar year;
Easter
(c)with the Mother from 3:00pm Easter Thursday until 3:00pm Easter Sunday and with the Father from 3:00pm Easter Sunday until 3:00pm Easter Tuesday in each even calendar year and
(d)with the Father from 3:00pm Easter Thursday until 3:00pm Easter Sunday and with the Mother from 3:00pm Easter Sunday until 3:00pm Easter Tuesday in each odd calendar year;
(e)for Father's Day with the Father from 4:30pm on the day preceding Father's Day to 4:30pm on Father's day;
(f)for Mother's Day with the Mother from 4:30pm on the day preceding Mother's Day to 4:30pm on Mother's day;
(g)on the child's birthday the parent with whom she is not living with at the time shall spend with her from 3:00pm to 5:00pm if on a school day; or
(i)for two hours on school days; and
(ii)from 2:00 pm to 6:00pm if on non-school day.
7.The Father's time be suspended on C and D’s birthdays from 10:00am until 2:00pm if such birthdays fall on a weekend that the child is in the Father's care.
8.All changeovers be conducted at the B Children's Contact Service (unless otherwise agreed in writing between the parents).
9.Each of the parents enrol in and complete the E Program or similar program within six (6) months of the date of these Orders.
10.The Father complete the Circle of Security program or similar within 6 months of the date of these Orders.
11.Within 28 days of the date of this Order, unless another form of written communication is agreed between the parties, both parties must do all things to sign up to the Our Family Wizard App and, pay one half the cost of the annual subscription each, as and when it falls due.
12.The Mother and Father exchange all communication relating to the child via the ‘Our Family Wizard App’ or such other parenting communication method as may be agreed between the parties in writing, save for in the circumstances of an emergency.
13.For the purpose of communicating information between the parties, the parties shall communicate with each other in a respectful and courteous manner.
14.Each party refrain from:
(a)making critical and derogatory remarks in relation to the other party in the presence of/or hearing of the child and that each party shall do all things necessary to ensure that no third party makes any such critical or derogatory remarks about the other parties in the presence of/or hearing of the child; and
(b)Discussing the proceedings, or any issues arising out of these proceedings, with the child or permitting any third party to do so.
15.The parties are restrained from:
(a)Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the Mother, the Father or any other member of either party's household; and
(b)Physically disciplining the child.
16.All extant applications are 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
These are parenting proceedings concerning X born in 2019. X is currently 5 years old and is described as a ‘happy, talkative and confident little girl who clearly enjoyed interacting with those around her.’[1] She is currently attending ‘Kindi’ at F School.
[1] Addendum Report of Dr G dated 18 January 2024, 12 (‘Addendum Report 2024’).
The Father, Mr Carrick, initiated proceedings on 12 July 2021 seeking orders for equal shared parental responsibility, for X to live with both parents equally and special occasion time. The Mother, Ms Lambert (‘the Mother’), responded seeking sole parental responsibility, for X to live with her and the Father’s time and communication to be reserved.
On 4 October 2021, an Independent Children’s Lawyer (‘the ICL’) was appointed.
On 18 November 2021, an assessment and report was requested by the Mother from Dr G.
A Child Impact Report was ordered on 10 December 2021 and subsequently released by Ms H on 15 February 2022.[2]
[2] Child Impact Report of Ms H dated 15 February 2022 (‘CIR’).
Interim orders were made by consent on 9 March 2022 (‘the Interim Orders’) that X live with the Mother and spend supervised time with the Father at the B Contact Centre on such terms as can be facilitated by the Centre, but no less than once per fortnight.[3] Those orders remain in force.
[3] Order of Turnbull J in Carrick & Lambert (Federal Circuit and Family Court of Australia Division 2, LNC576/2022, 9 March 2022).
Dr G was, by consent, appointed as the Single Expert in the proceedings — notwithstanding her past engagement with the Mother — and a Family Report from Dr G was released 16 May 2022, followed by two addendum reports on 20 October 2022 and 2 January 2023. A further and final addendum report was released 22 January 2024.[4]
[4] A total of 6 expert reports were requested and released, including the CIR and 5 reports by the Single Expert, Dr G. For ease and clarity, each report will be referred to the year the report was dated, such as the ‘Family Report 2022’ or ‘Addendum Report 2022’ and so on.
On 22 August 2022, the Father filed an Amended Initiating Application seeking Orders that that X live with him and spend supervised time with the Mother, or, in the alternative, he spend weekend, holiday and special occasion time with her.
On 2 May 2023, the Court was advised that the Father had not been spending time with X pursuant to the Interim Orders. Both parties accused the other for non-compliance with the Interim Orders and for missing or cancelling the scheduled visits.[5]
[5] The Father claimed that the Mother was cancelling visitations and preventing him from seeing X due to the serious charges of assault. The Mother claimed that the Father was not attending the Contact Centre for visitations. The Independent Children’s Lawyer subpoenaed the Contact Centre notes which revealed multiple instances where the Mother had cancelled scheduled visits and the Father missing approximately 2 visits due to work and illness. The Court expressed to both parties that the fact that a person is charged with a crime is not a reasonable excuse for non-compliance with a court order; Order of Turnbull J in Carrick & Lambert (Federal Circuit and Family Court of Australia Division 2, LNC576/2021, 2 May 2023).
The Father’s time with X was suspended on 3 July 2023 until 31 July 2023,[6] before being re‑instated on 2 August 2023 following an interim hearing.[7]
[6] Order of Turnbull J in Carrick & Lambert (Federal Circuit and Family Court of Australia Division 2, LNC576/2021, 3 July 2023).
[7] Order of Turnbull J in Carrick & Lambert (Federal Circuit and Family Court of Australia Division 2, LNC576/2021, 2 August 2023).
The trial commenced in early 2024 and lasted for a total of 5 days. As the Father had been charged with serious criminal matters against the Mother, including charges of assault, section 128 Certificates were issued for both parties in relation to the allegations.
At trial, the Father sought sole parental responsibility, for X to live with him and to spend supervised time with the Mother.[8] His fall-back position was for ‘alternative’ time set out in his Amended Application of 22 August 2022. The Mother sought sole parental responsibility, for X to live with her and to have one (1) hour of supervised time with the Father once a fortnight at B Contact Centre. She did not envisage that his supervised time would move to unsupervised time.[9]
[8] Outline of Case of Mr Carrick filed 20 January 2024 (‘Father’s Case Outline’).
[9] Outline of Case of Ms Lambert filed 19 January 2024 (‘Mother’s Case Outline’).
On 14 February 2024, an Order was made compensating the Father with time that he had lost when the Mother, again, did not comply with the interim Order.[10]
[10] Order of Turnbull J in Carrick & Lambert (Federal Circuit and Family Court of Australia Division 2, LNC576/2021, 14 February 2024) [1].
Background
The Mother is 31 years of age and currently studying at university.[11] She is currently unemployed and in receipt of benefits.[12]
[11] Affidavit of Ms Lambert filed 8 January 2024 [8] (‘Mother’s Trial Affidavit’).
[12] Ibid. The Mother is in receipt of a parenting payment partnered and Family Tax Benefit A & B from Centrelink.
The Mother resides with her husband, Mr J, and two other children, C and D, from her former marriage to Mr K. The Mother separated from Mr K in 2017.[13] Mr K passed away in 2019.[14]
[13] Mother’s Case Outline (n 9) 2.
[14] Father’s Case Outline (n 9) 2.
C, born in 2013, is currently 11 years of age and autistic, having been diagnosed when she was three years of age. She was described by the Mother as an intelligent and shy young girl. D, born 2015, is currently 9 years of age and has been known to be a confident and bright child.[15] The Mother alleged that since her relationship with the Father, D has become withdrawn.
[15] Mother’s Affidavit (n 11) [5]-[7], [107]-[109].
The Father is 29 years of age and is currently employed as a tradesperson.[16] He has resided with his partner, Ms L, and her parents since early 2023.[17]
[16] Affidavit of Mr Carrick filed 12 January 2024 [120] (‘Father’s Trial Affidavit’).
[17] Ibid [121].
The parties commenced their relationship in June 2017.[18] They commenced cohabitation in or around mid-2018, moving to M Street, Suburb N along with C and D.[19] X was born in 2019.
[18] Mother’s Trial Affidavit (n 11) [6].
[19] Ibid [18].
The Father was diagnosed with ‘general anxiety’ in 2017 and began engaging with a psychologist.[20]
[20] Family Report of Dr G dated 16 May 2022, 7 (‘Family Report May 2022’).
The Mother stated that they participated in couples counselling at the same time of commencing cohabitation.[21]
[21] The Father states they decided to attend counselling as well, but he does not provide a date or timeframe.
The Mother alleged that the Father became very abusive, controlling, and aggressive following the birth of X.[22] The Father denied these allegations, claiming it was the Mother who was the aggressor.[23]
[22] Mother’s Trial Affidavit (n 11) [24].
[23] Father’s Trial Affidavit (n 16) [15]-[16].
During late 2020 to early 2021, the parties separated on a final basis.[24] They continued living under the same roof after separation, with the Father stating that he moved out of the shared home in January 2021.[25]
[24] The Mother states that the parties separated in November 2020. The Father states they separated on 11 January 2021.
[25] Father’s Trial Affidavit (n 16) [36].
A Police Family Violence Order was issued and served upon the Father in early 2021.[26]
[26] Father’s Case Outline (n 8) 2.
In late 2021, the Mother and her two children, C and D, began counselling at O Centre.[27]
[27] Mother’s Trial Affidavit (n 11) [97].
In early 2023, the Father was charged with sexual assault offences, with the Mother as the complainant. The Father entered a plea of not guilty to all charges. Preliminary proceedings have finalised and the first appearance before Court was in early 2024.[28] The proceedings remain unresolved.
Submissions
[28] Father’s Trial Affidavit (n 16) [114]-[117]. The charges relate to one offence “[in mid] 2020”, two offences in “[late] 2020”. The matter was committed to court after the preliminary proceedings, with the possibility of the matter progressing to trial some time in 2024 or later.
The Father
Mr Peterson, Counsel for the Father, submitted that the Mother has shown, through her false accusations and her willingness to breach court orders, that she is incapable of facilitating a relationship between X and the Father. As such, the Mother’s time should be restricted to limit her negative influence upon X’s relationship with the Father. Consequently, X should live with the Father and he should have sole parental responsibility.
In the alternative, he sought fortnightly weekend time with X and time in the holidays — there being no basis for the Father’s time with X to remain restricted.
The Mother
Mr Verney, Counsel for the Mother, submitted that the Father poses an unacceptable risk to X based on the history of family violence — including sexual violence — and the Father’s abusive behaviour towards the Mother and her children. Other concerns include the Father allegedly neglecting X, his sexual and violent assault upon C, his addiction to masturbation and the serious criminal charges that he faces.
Mr Verney also submitted that the Mother’s parenting would be discernibly impacted, should the Father be allowed to spend unsupervised time with X.[29] As such, his time with X should remain supervised. Mr Verney also referenced the negative impact of the Father spending time with X upon C and D, and asked the Court to conclude that it is not in X’s best interest to spend unsupervised time with the Father.
[29] Counsel for the Mother put forward an Re v Andrew argument which is discussed later in these Reasons.
The Independent Children’s Lawyer (‘ICL’)
Mr Trezise, as Counsel for the ICL, submitted that the parties should have equal shared parental responsibility for X and the Father’s time should slowly build to alternative weekend time and half of the school holidays. The slow build-up of time will benefit X in developing a meaningful relationship with the Father, her paternal grandparents and her extended family — an opportunity not provided to X by the Mother.
The ICL submitted that the Father does not pose an unacceptable risk to X — even if he is convicted of the serious charges he must face — arguing that there is no credible evidence that the Father has ever posed a risk to X or any other child.
The ICL also rejected the Mother’s argument that her capacity to parent will be severely affected if the Father has unsupervised time with X. The Mother has coped with the Father spending time with X and she presents as a resilient person who will continue to competently parent X, C and D should the Father’s time with X becomes less restricted.
Finally, the ICL did not support the Father’s application for X to live with him, as such a significant change would negatively impact X’s wellbeing.
Evidence
The Father
The Father relied upon:
·Case Outline filed 20 January 2024;
·Trial Affidavit of Mr Carrick filed 12 January 2024;
·Amended Initiating Application filed 10 August 2022;
·Notice of Risk dated 12 July 2021;
·Single Expert reports of Dr G (5 in total);
·Section 69ZW Report from Child Welfare dated 11 August 2023;
·The Child Impact Report dated 15 February 2022; and
·His Tender Bundle (‘the Father’s Tender Bundle’).[30]
[30] Father’s Case Outline (n 8).
The Father was cross-examined by Mr Verney and Mr Trezise. He did his best to answer questions directly, making some appropriate concessions. His delivery was generally calm — perhaps somewhat emotionless — notwithstanding the serious nature of the allegations raised against him. Strangely, he became most animated when asked as to why he had retained the motor vehicle owned by the Mother. His evidence seeking to justify his actions in taking that vehicle when the Mother was shopping, leaving her and X stranded, was far from child focused, and left a poor impression.
Dr G conducted a Personality Assessment Inventory (‘PAI’)[31] for the Father, concluding:
[Mr Carrick] – The information provided during the assessment indicates that [Mr Carrick] has a history of experiencing symptoms related to anxiety and low mood, with these symptoms being exacerbated during times of high stress (e.g. work difficulties; relationship difficulties). Based on the information provided by [Mr Carrick] and the results from the PAI, [Mr Carrick] does not appear to be currently experiencing any significant clinical symptoms that indicate the presence of clinical psychopathology. Although [Mr Carrick]’s responses to the PAI indicates that he may have a tendency to portray himself as being relatively free of common shortcomings to which most individuals will admit, there was no evidence to suggest that there was an effort to intentionally distort the profile. [Mr Carrick]’s presentation during the clinical interview indicates that he was not motivated to shy away from providing information that could potentially portray him in a negative light and therefore it is considered that the results obtained from the PAI assessment are likely to be an accurate representation of his current psychological state. Therefore, based on [Mr Carrick]’s current presentation, I have formed the view that he is not currently suffering from any psychological condition or disorder that is likely to affect his capacity to provide adequately for [X]’s various needs.
[Mr Carrick]’s stable and relatively stress-free environment combined with an intact social support system is a favourable prognostic sign for future adjustment. It is recommended that he continues to monitor his mental health and engage with his GP and treating Psychologist on an as needed basis. As noted previously, [Mr Carrick]’s tendency towards anxiety and low mood is exacerbated during times of increased stressors and therefore ongoing monitoring and management of symptoms is recommended.[32] (emphasis added)
[31] Dr G describes PAI as, ‘The PAI is a 344 item self report assessment of psychological functioning. It compares an individual’s responses to those from large community and clinical normative samples on a variety of constructs relevant to the assessment of personality and psychopathology consistent with the Diagnositc and Statistical Manual of Mental Disorders Fifth Edition [DSM-V] guidelines (American Psychiatric Association [APA], 2013). The PAI provides a number of validity indices that are designed to provide an assessment of factors that could distort the results of testing. Such factors could include failure to complete test items properly, carelessness, reading difficulties, confusion, exaggeration, malingering, or defensiveness. For this protocol, the number of uncompleted items is within acceptable limits.’; Family Report May 2022 (n 20) 9.
[32] Ibid 23-24.
I treat the Father’s evidence with some caution and will look to the more objective material when making findings of fact.
The Mother
The Mother relied upon:
·Case Outline filed 19 January 2024;
·Trial Affidavit of Ms Lambert filed 8 January 2024;
·Affidavit of Mr J filed 1 December 2022;
·Affidavit of Ms P filed 1 December 2022;
·Notice of Risk dated 21 September 2021;
·Amended Response to Final orders filed 1 December 2022;
·Single Expert reports of Dr G (5 in total); and
·The Independent Children’s Lawyer’s Tender Bundle (‘the ICL Tender Bundle’).[33]
[33] Mother’s Case Outline (n 9). It is noted that ultimately the affidavit of Mr J was not read.
The Mother was cross-examined by Mr Petersen and Mr Trezise. She generally answered questions directly and confidently. There were times, however, where she was unable or unwilling to make sensible concessions, and, consistent with Dr G’s assessments below, she tended to catastrophise events that were concerning her.
Dr G conducted two PAI assessments of the Mother. The first was in 2021, when the Mother engaged Dr G to provide a report for her case. Dr G opined:
The degree to which response styles may have affected or distorted the report of symptomatology on the inventory is also assessed. Certain indicators fall outside of the normal range, suggesting that [Ms Lambert] may not have answered in a completely forthright manner; the nature of her responses might lead the evaluator to form a somewhat inaccurate impression of the client based upon the style of responding described below. With respect to positive impression management, there is no evidence to suggest that [Ms Lambert] was unduly defensive or motivated to portray herself as being relatively free of common shortcomings or minor faults.
With respect to negative impression management, there are indications that [Ms Lambert] tended to endorse items that present an unfavourable impression or represent extremely bizarre and unlikely symptoms. This result suggest that the profile may exaggerate complaints and problems. Although this pattern dose not necessarily indicate a level of distortion that would render the test results invalid, the results need to be considered with a degree of caution because the clinical scale elevations are likely to overrepresent the extent and degree of symptomatology.
[Ms Lambert]’s PAI clinical profile is marked by significant elevations across several scales, indicating a broad range of clinical features and increasing the possibility that the clinical scales may overrepresent or exaggerate the actual degree of psychopathology. Nonetheless, profile patters of this type are usually associated with marked distress and, unless there is extensive distortion or exaggeration of symptomatology, severe impairment in functioning is typically present. The configuration of the clinical scales suggests a person with significant unhappiness, moodiness, and tension.
…
[Ms Lambert] describes a level of suspiciousness and mistrust in her relations with others that is unusual even in clinical samples. Such a pattern is often associated with prominent hostility and paranoia of potentially delusional proportions. She is likely to be a hypervigilant individual who often questions and mistrusts the motives of those around her. She is extremely sensitive in her interactions with others and likely harbours strong feelings of resentment as a result of perceived slights and insults.[34] (emphasis added)
[34] Report of Dr G dated 18 November 2021, 9-10 (‘Expert Report November 2021’). This Report was annexed to the Mother’s affidavit of 2 August 2022.
For her May 2022 Report, after Dr G was appointed a Single Expert, she conducted a Minnesota Multiphasic Personality Inventory-3 (‘MMPI-3)[35] for the Mother, concluding:
[Ms Lambert] – Information provided during the clinical interview and results from the MMPI-3 indicate that it is possible that [Ms Lambert] is experiencing a range of symptoms related to psychological distress, with diagnostic considerations including; Posttraumatic Stress Disorder (PTSD), Anxiety-related disorders (e.g. Generalised Anxiety Disorder; Panic Disorder) and Depression-related disorders (e.g. Dysthymia; Major Depression).
This is consistent with the information provided and the psychometric findings in the previous assessment (dated 18th November, 2021), at which time [Ms Lambert] reported experiencing similar symptoms of psychological distress. However, as noted in the previous report, after completing the Personality Assessment Inventory (PAI), [Ms Lambert]’s profile indicated that she may not have responded to questions in a completely forthright manner; there was a strong indication that [Ms Lambert] tended to endorse items that present an unfavourable impression or represent extremely bizarre and unlikely symptoms. This type of response style is indicative of the respondent demonstrating a tendency towards the exaggeration of complaints and problems which thereby overrepresents the extent and degree of symptomatology.
Similarly, during the current assessment, [Ms Lambert]’s scores on the MMPI-3 Validity Scales raises concerns about the likelihood of over-reporting of symptoms. [Ms Lambert] provided an unusual combination of responses that are associated with non-credible reporting of somatic and cognitive symptoms. While the elevation of the Somatic Complaints scale is expected given [Ms Lambert]’s reportedly debilitating physical health conditions, the combination of responses suggest that there is a tendency towards exaggeration and over-reporting of symptom severity.
This tendency to exaggeration was indicative of [Ms Lambert]’s presentation during the current and previous assessment. As noted in the previous report, [Ms Lambert]’s extreme level of hypervigilance and extreme emotional distress appeared to be somewhat performative and exaggerated and was not consistent with the demeanour that was observed during more spontaneous moments. This is consistent with observations made by another health professional (information gathered during the previous assessment), who described [Ms Lambert] as demonstrating “a completely different front” in the therapeutic setting, with the impression being that [Ms Lambert]’s demeanour was not always authentic. During the current assessment, [Ms Lambert] presented as being more even and calm in the way she presented information, however the language and descriptions used by [Ms Lambert] was observed to somewhat hyperbolic and not an entirely accurate representation of the actual circumstances.[36] (emphasis added)
[35] Dr G, at page 16 of the Report, explains that the MMPI-3 is an empirically validated 335-item self-report measure of personality and psychopathology.
[36] Family Report May 2022 (n 20) 20-21.
I also treat the Mother’s evidence with some caution and will look to the more objective material when making findings of fact.
Ms P
In essence, Ms P’s affidavit evidence spoke to the Mother’s changing emotional state as a result of her relationship with the Father. These observations were based on her close relationship with the Mother, the children — particularly D — and Mr J, the Mother’s husband (who was ultimately not called as a witness). In her affidavit, Ms P spoke of the Mother’s nature and emotional wellbeing being severely impacted by her relationship with the Father and alleged family violence, including an incident she witnessed during a dinner with Ms Lambert and her children. Importantly, Ms P also deposed to a conversation she had with the Father where he admitted to having ‘choked [Ms Lambert] in a sexual act’ and that he ‘went too far.’[37]
[37] Affidavit of Ms P filed 1 December 2022 [18].
Ms P also witnessed a change in D’s behaviour, attributing the more ‘sad and solemn’ demeanour to be a result of the Father’s behaviour. She highlighted an instance where D purportedly said she was afraid of the Father, concluding that the children and the Mother needed to be protected from the Father due to the trauma he has caused them.
Ms P was not required for cross-examination and as such her evidence was read in unchallenged, although unchallenged evidence is not necessarily accepted.[38] Some of Ms P’s evidence is opinion evidence or based upon what the Mother has told her — evidence to which I give little weight. I will, however, give weight to her evidence regarding her direct observations.
[38] Raymond & Raymond [2023] FedCFamC2F 1396 [25].
The ICL
The ICL relied upon:
·Case outline filed 9 January 2023;
·Affidavit of Dr G filed 3 August 2022;
·Single Expert Reports of Dr G (5 in total);
·Child Impact Report dated 15 February 2022; and
·Section 69ZW Report from Child Welfare dated 11 August 2023; and
·The Independent Children’s Lawyer Tender bundle (‘the ICL Tender Bundle’).
Dr G
The ICL relied upon the five reports of the Single Expert, Dr G. Dr G was initially engaged by the Mother to provide a report for the purpose of interim proceedings.[39] In 2021, the parties agreed to engage Dr G as the Single Expert, notwithstanding her earlier involvement with the Mother. I commend the parties for taking such a pragmatic approach.
[39] Expert Report November 2021 (n 34).
Dr G had the advantage of observing and considering the parties and the children over three years.
Dr G’s first report was instigated by the Mother and had no involvement from the Father. Dr G considered the Mother’s accusations of family violence and its reported impact upon her and her children. She carried out a Personality Assessment Inventory (PAI) on the Mother and spoke with the Mother’s therapist, Ms Q. Based on this information Dr G concluded:
In the event that contact between [Mr Carrick] and [X] is Court Ordered, it may be in everyone's best interest for contact to be initially supervised, particularly considering the fact that [X] has not had any contact with her father for nearly a year. During the clinical interview, a conversation was had with [Ms Lambert] in relation to the safety of contact occurring in a supervised setting such as the Children's Contact Centre. In the event that supervised contact is Court Ordered, it is recommended that [Ms Lambert] has the opportunity to access further information about the safeguards and processes involved in supervised contact as this may also assist in alleviating a degree of the anxiety she reportedly experiences in regard to the possibility of harm.[40]
[40] Ibid 16.
Dr G opined in her 16 May 2022 Report — provided in the form of a Family Report — notwithstanding the serious accusations against the Father:
At this point in time, given [X]’s stage of development, any parenting arrangement needs to take into account her biological and psychological need to keep her primary attachment ([Ms Lambert]) secure while promoting her relationship and developing her bond with [Mr Carrick]. One way of managing this is to start with parenting arrangement that involves short (i.e. 1-2 hours) but frequent (weekly) contact visits between [Mr Carrick] and [X]. CCS staff will be in a position to assess how [X] is responding to contact and can provide useful information in regard to making decisions about future parenting arrangements (e.g. appropriateness of increasing time, moving towards semi-supervised contact etc).[41] (emphasis added)
[41] Family Report May 2022 (n 20) 27-28.
By October 2022, after viewing the positive reports of the Father’s time at R Contact Centre, Dr G opined:
1. Whether time should continue to be supervised (either indefinitely or for a period of time as yet unknown)
… Given the positive reports provided by [S Service], it may now be appropriate to move towards semi-supervised visits. For example; visits commence at the Contact Centre, with [Mr Carrick] and [X] leaving the Centre for a period of time (e.g. 2 hours) to engage in an unsupervised activity (e.g. visiting a park). On return to the Centre, staff can observe [X]’s response to contact and gauge whether or not contact has been a positive experience. Providing [X]’s response to semi-supervised contact is positive, a logical progression would include a move towards longer semi-supervised contact and eventually unsupervised.(emphasis added)
2. If it is determined that ongoing supervision is not warranted what the rate of progression should be with the objective that [X] spend alternate weekends, time during school holidays and special occasions with the father:
The rate at which [X]’s contact with [Mr Carrick] should progress to unsupervised contact will be determined by [X]’s response to semi-supervised visits. Given that [X] has responded well to the initial contact with [Mr Carrick], it is unlikely that a lengthy progression will be necessary before considering unsupervised contact; for example, 4-5 semi-supervised visits followed by 4‑5 extended semi-supervised visits before moving towards unsupervised contact every alternate weekend. It is recommended that at least some of the extended semi-supervised visits occur in [Mr Carrick]’s home to allow [X] the opportunity to become familiar and comfortable with those surroundings before progressing to entirely unsupervised weekend contact. It is also recommended that [X] has the opportunity to experience unsupervised day visits with [Mr Carrick] in his home before progressing to overnight contact.[42] (emphasis added)
[42] Addendum Expert Report of Dr G dated 20 October 2022, 2 (‘Addendum Report October 2022’).
Dr G’s recommendation remained the same in her 2 January 2023 Addendum Report, after considering the impact of the Father having unsupervised time upon the Mother.
In January 2024, Dr G considered the impact of the Father having time with X upon C and D,[43] concluding that there was unlikely to be any ill effect upon either of them if the Father’s time with X continued and developed.[44]
[43] Addendum Report 2024 (n 1).
[44] Ibid 12.
Dr G was cross-examined by all Counsel. Mr Verney focused his challenge upon her conclusion that the Father does not pose an unacceptable risk of harm to X, and that his time should now become unsupervised and build up gradually. Her position was unmoved.
Dr G gave her evidence in a deeply considered manner — willing to reflect on the opinions stated in her reports when new information was put to her. I give Dr G’s evidence considerable weight.
Failure to call witnesses
Both parties failed to call their partners as witnesses in these proceedings.
The Father’s partner, Ms L, was, potentially, an important witness, given that the Father’s primary application was for X to live with him. To not call her prevented the Court from being able to properly understand the dynamics at play in his home. Further, given the nature of the allegations surrounding the Father, she may have provided evidence as to her experiences of him, noting that the Father describes their relationship as ‘a warm relationship’ with ‘no difficulties or reports regarding family violence or the like.’[45]
[45] Father’s Trial Affidavit (n 16) [121].
The Mother’s failure to call Mr J was also unhelpful. He did file an affidavit in the proceedings,[46] but during the hearing the Mother elected not to call him, and his affidavit was not read into evidence. Like Ms L, Mr J could have provided evidence as to the dynamics at play in his home and how the children are currently presenting — particularly X following her spending time with the Father. Mr J may also have been able to give evidence as to what was allegedly said by C regarding her serious accusations against the Father.[47] He also may have been able to explain a police complaint made by the Mother against him in 2022, when she allegedly injured her during a violent altercation with him.[48]
[46] Affidavit of Mr J filed 1 December 2022.
[47] The Mother states in her Trial Affidavit that both her and Mr J were present when C made allegations against the Father; Mother’s Trial Affidavit (n 11) [89]-[90].
[48] Exhibit F1: Tasmania Police Service Disclosure Report
The Court may, in light of parties’ failure to call or provide evidence from these important witnesses, infer that their evidence would not have assisted each parties’ case. As stated by Lord Mansfield in Blatch & Archer [1774] 98 ER 969:
… all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.[49]
[49] Blatch v Archer (1774) 98 ER 969, 970.
Jones v Dunkel (1959) 101 CLR 298 is a ‘particular application’ of the rule in Blatch v Archer,[50] stating in relation to the trial judge’s directions that:
what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.[51]
[50] Lavell & Lavell [2012] FamCA 34 [122]-[123] (Murphy J) (‘Lavell & Lavell’).
[51] Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J).
Further, as set out by Murphy J in Lavell & Lavell [2012] FamCA 34:
122. The “rule in Jones v Dunkel” relates to the potential for an adverse inference to be drawn in circumstances where evidence presented in a case raises an inference against a party and that party is in a position to give or call evidence to refute it and does not do so. But, the “rule in Jones v Dunkel” can be seen as “a particular application” of “the rule in Blatch v Archer”. (See Ho v Powell [2001] NSWCA 168 per Hodgson JA at [15], Beazley JA agreeing).
123. The latter “... applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of that failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case ...” (Ho v Powell). The principle in Blatch v Archer can be seen as wider than the “rule in Jones v Dunkel” “because it is also available against the person bearing the onus of proof where that person does not adduce evidence that he or she was plainly in a position to adduce”. (Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 per Austin J at [439].[52]
[52] Lavell & Lavell (n 50) [122]-[123].
Murphy J also extracted the following statement originating from Shalhoub v Buchanan [2004] NSWSC 99 and repeated in subsequent authorities, including Australian Securities and Investments Commission v Rich [2009] NSWSC 1229:
124.[T]he failure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus.[53]
[53] Ibid [124]; Shalhoub v Buchanan [2004] NSWSC 99, [71] (Campbell J); Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 [440].
The rule in Jones v Dunkel appears to operate as a narrower application of the rule in Blatch v Archer. The former refers to potential inferences arising from a respondent’s failure to refute evidence presented by the party bearing the onus of proof if that party would be able to call or give such evidence. The latter provides for potential inferences against either party — the core of the rule concerns evidence which is plainly available to a party to give or call which remains ungiven or uncalled, and for which there is no explanation beyond that it would not have assisted their case.[54]
[54] Lavell & Lavell (n 50) [122]-[123].
By virtue of Jones v Dunkel, and in light of both parties’ failure to call their partners, this Court can be confident about drawing inferences against them both for choosing not to call evidence that was within their power to produce.[55]
[55] Australian Securities and Investments Commission v Rich (n 53) [439] (Austin J). See also Jones v Dunkel (n 51) (Kitto J) which, with respect to the trial directions forming the basis of appeal, states that ‘what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence’.
Standard of Proof
I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.
The Evidence Act 1995 (Cth) sets out the applicable standard:
140 Civil proceedings: standard of proof
In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged. [56] (original emphasis)
[56] Evidence Act 1995 (Cth) s 140 (‘EA’).
Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remain relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
I must ground my assessment of the child’s best interests in facts, of which I am persuaded, on the balance of probabilities.
Issues for Determination
All parties agreed at trial that the Court is not required to make a positive finding about the allegations of sexual abuse and other criminal charges.
The issues arising from trial relate to:
(1)whether there should be an order for sole parental responsibility favouring one of the parties or equal shared parental responsibility;
(2)whether the Father poses an unacceptable risk to X such that his time with her should remain supervised or transition to unsupervised;
(3)whether X spending time with the Father will negatively impact C and/or D, such that it would not be in X’s best interests to have unregulated time with the Father;
(4)whether the Mother’s parenting would be discernibly impacted if the Father spends unsupervised time with X; and
(5)whether the Mother poses an unacceptable risk of psychological harm to X because of alleged false accusations made against the Father and/or her inability to promote a relationship with the Father, such that X should live with the Father and spend restricted time with the Mother.
Parenting Orders: the law
This Court must craft and consider the terms of a parenting order with regard to the child’s best interests as a paramount consideration.[57] I am not bound by the terms proposed by the parties and — subject to the pathway set out in the Family Law Act 1975 (Cth) (‘the Act’) Part VII, and particularly ss 61DA and 61DAB — may create parenting orders as I think are proper in the circumstances.[58] What, however, guides the assessment of a child’s best interests? How, once the best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?
[57] Family Law Act 1975 (Cth) s 60CA (‘FLA’).
[58] Ibid s 65D(1).
The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations with respect to the child’s best interests. Crucially, and as touched upon at trial, the underlying principles reflect and seek to enforce a child’s human rights.[59] Part VII of the Act, to give effect to a child best interests, carves a legislative pathway. The pathway has a number of substantive stepping-stones which may be legitimately and properly followed in various forms.[60] I will follow the path set out in MRR & GR (2010) 240 CLR 461, which remains authoritative.[61]
[59] Ibid s 60B(1), (2), (4), noting the expression of responsibility at subs (1), the expression of the child or children’s rights at subs (2), and the additional object at subs (4) to give effect to the Convention on the Rights of the Child.
[60] Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’.
[61] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
The Child’s best interests: the s 60CC factors — Primary considerations
The Act sets out two mandatory considerations at s 60CC(2). It is noted that s 60CC(2)(b) is to be given greater weight than s 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under s 60CC(3), which will be considered insofar as they are relevant to this matter.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[62] (emphasis added)
[62] Mazorski & Albright [2007] FamCA 520 [26]; McCall & Clark [2009] FamCAFC 92 [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship.’ Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[63]
[63] Godfrey & Sanders [2007] FamCA 102 [36].
It was apparent, despite the Father’s time being interrupted, and he having long periods of time without contact,[64] that his relationship with X is positive and meaningful to her, as noted by Dr G:
Information provided in the [S Service] subpoenaed documents indicate that the contact visits between [Mr Carrick] and [X] have been progressing well. Despite the prolonged separation between [Mr Carrick] and [X], it has been observed that [X] has responded well to [Mr Carrick] and that she presents as being relaxed and comfortable in [Mr Carrick]’s company. [X] has consistently presented as being comfortable being in close proximity to [Mr Carrick], with their being examples of [X] choosing to sit closely to [Mr Carrick], sitting on his knee, reciprocating a hug, willingly and happily engaging in play and reciprocal conversation and referring to [Mr Carrick] as “Dad”. It is further reported that [Mr Carrick] interacts with [X] in an engaged, supportive and developmentally appropriate manner.[65]
[64] The Father expressed in the Family Report May 2022 that he had not had any contact with X since January 2021 — this was stated during his interview on 9 May 2021.
[65] Addendum Report October 2022 (n 42) 1.
Dr G opined under cross-examination that if the Court determined it is safe for X to spend time with the Father, then she would benefit from such a relationship continuing, even if the Father were to be imprisoned. By that stage her bond with the Father would have grown deeper, by virtue of his ongoing time with her.
The Contact Centre notes, evidencing the observations of the Father’s time with X from April to August 2022, formed part of the Father’s Tender Bundle.[66] As observed by Dr G, those notes demonstrated the close and happy relationship that exists for X and the Father. The interactions are regularly described as ‘co-operative, relaxed and age appropriate,’[67] noting that the Father had not spent time with X for 18 months prior to the visits commencing.[68]
[66] Father’s Case Outline (n 8). I note that only part of documents were relied upon and that they were not officially tendered but found their way into the evidence through Dr G’s observations and comments about them.
[67] Tender Bundle of Mr Carrick filed 20 January 2024, 36, 40, 42 (‘Father’s Tender Bundle’).
[68] Family Report May 2022 (n 20) 27.
For her 18 January 2024 Report, Dr G met with X and observed:
[X] presented as being highly motivated to have her own turn talking to me in my office. With [Ms Lambert]’s consent, [X] excitedly accompanied me to my office. Given [X]’s young age and current level of development, it was not possible to engage [X] in any meaningful conversation around the issues relating to the assessment. Nevertheless, [X] presented as being a happy, talkative and confident little girl who clearly enjoyed interacting with those around her.[69]
[69] Addendum Report 2024 (n 1) 11-12.
By that stage X had enjoyed many supervised visits with the Father, and her presentation did not suggest any ill effect from such visits. It can be inferred that their relationship has grown stronger over the intervening period.
The Mother claimed that X had adversely reacted to spending time with the Father:
I asked [Ms Lambert] how [X] responds to contact with [Mr Carrick] and she said, "She gets a bit dysregulated and quite clingy but she settles down okay".
I asked [Ms Lambert] whether she considered [X] to be at risk of harm when spending time with [Mr Carrick] and she said, "I think it's good that contact is supervised. It's a lot better and safer for [X]. My concern is that if it goes unsupervised, she's not old enough to protect herself. The safe guards aren't there. I'm working intensely with my therapist to work through that".[70]
There was, however, no objective evidence produced to support the Mother’s claim. There was no objective evidence that the Father’s supervised time after August 2022 had been anything but a positive experience for X.
[70] Ibid 5-6.
I accept the Father’s evidence that he often cared for X, C and D during the relationship,[71] with the Mother once describing him as an ‘amazing step-father’ to the Child Support Agency.[72] I assume that since the Trial the Father has enjoyed ongoing time with X, under supervised conditions, pursuant to the interim order — there has been no evidence to the contrary. I infer that their relationship has developed since that time.
[71] Father’s Trial Affidavit (n 16) [13].
[72] Trial: cross-examination of the Mother. The Mother conceded this under cross-examination from Mr Trezise.
I have no hesitation in finding that X has a meaningful relationship with both of her parents. Her presentation established that she is flourishing in the Mother’s primary care and her relationship with the Father is building. For X’s relationship with the Father to develop, however, her time needs to move away from the Contact Centre — provided it is safe for her to do so.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is my task to ensure that the ultimate parenting orders do not place the child at an unacceptable risk of harm due to family violence, abuse, or neglect or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting a child from harm (or any unacceptable risk thereof) is intertwined with the paramountcy principle, as evident in s 60CC(2)(b). This includes any risk of family violence, abuse, or neglect.[73]
[73] FLA (n 57) ss 4AB (definition of ‘family violence’), 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s 60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.
The question of unacceptable risk is aimed at ensuring that the terms of an order are consistent with a child’s best interests, in that, to the extent possible and foreseeable, the orders do not place them at risk of harm.
The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.’[74] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[75] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[76] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s 65D by reference to the child or children’s best interests:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[77]
[74] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) (‘M v M’); Bant & Clayton [2019] FamCAFC 198 [38]-[41].
[75] Isles & Nelissen [2022] FedCFamC1A 97 [46]-[51], [86] (‘Isles & Nelissen’); Bringinshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); EA (n 56) s 140.
[76] Isles & Nelissen (n 75) [83].
[77] Ibid [85].
The question before me is, therefore, whether X will, in the future (and on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities), be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable’.[78] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[79] The parenting orders ultimately made, in those circumstances, and if appropriate, can include measures to mitigate the type of risk as characterised.
[78] M v M (n 74) 77-78, at which their Honour state that ultimately, the Court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare’ , and that ‘[t]he existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access’. I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off “possibilities” in a prospective sense,’ affirmed by the Full Court on appeal.
[79] Murphy & Murphy [2007] FamCA 785 [318]-[319].
The alleged family violence
Both parties alleged they suffered family violence from the other, including instances of verbal abuse, physical abuse, and mistreatment of the children. For ease of reference, I have set out a chronology showing a timeline of the parties’ relationship, including areas of dispute regarding allegations of family violence.
Date Allegation Evidence 2018 Mother being physically violent to the Father Around 12 months into the relationship, the Father alleged that the Mother became physically violent, such as shoving or pushing him. The children were either close by or witnessing the Mother’s actions.[80] Early to mid 2018 Father accused of having a masturbation addiction While the parties were attending counselling, the Mother stated that the Father had a masturbation addiction, which he denied.[81] Mid 2018 Mother verbally abused by the Father’s parents The Mother alleged that once the parties decided to move in together after a year of dating, the Father’s parents verbally abused her, including threatening to harm her.[82] The Father did not recall any occasion where his parents made a threat to the Mother or any occasion where such incident(s) were reported to him.[83] Late 2019 Mother threatening to self-harm After returning home, the Father was told by the Mother’s friend, Ms P, that the Mother had threatened to self-harm. An ambulance was not called but the Father was told to keep an eye on her.[84] Mid-2020 Father neglected X whilst in his care Upon returning home after leaving X in the care of the Father, the Mother noticed X had a red, blistered and bleeding bottom after being left in a nappy all day.[85] The Father admitted that X developed nappy rash but stated it did not occur during the period he was caring for her.[86] Mid 2020 Father abused family pet The Father allegedly punched the family’s pet’s face, into the floor while the children were in the same room after the pet had urinated inside. The Mother believed the Father was going to kill the pet.[87] The Father recalled the pet urinating around the home, stating it was unhygienic for the Mother and children and telling the Mother as much, but he denied punching the pet.[88] Late 2020 Mother attempts to end relationship after Father left children unsupervised and Father attempts self-harm The Mother tried to end the relationship after finding the children unsupervised again. The Father attempted to injure himself.[89] The Father stated that the event of attempting to injure himself did not occur.[90] 2020 Father sexually assaulted Mother a number of times in the shower The Mother alleged that when she ceased having sex with the Father, he became sexually violent and engaged in sexual intercourse without her consent. This mainly occurred about 6 or 7 times.[91] Late 2020 Father places belt around Mother’s neck and rapes her The Mother alleged that the Father placed a belt around her neck and tightened it and then proceeded to rape her. The Father called their shared GP at T Medical Centre and informed him that ‘he had forced the Mother to have sex without her being willing and ‘it was almost rape.’[92]
The Mother later confronted the Father about what he had done and recorded the conversation on her phone with the Father admitting to sexually assaulting her.[93]The Father denied the allegation of rape on any occasion and denied that he committed any other sexual offence against her.[94]
The Father alleged the Mother demanded that he call the GP and tell them that he raped her. He complied with her demands in fear of the repercussions such as losing contact with X or damaging his relationship with the Mother.[95]Mid-2021 Father inappropriately touching C C allegedly disclosed to the Mother and Mr J that the Father touched her vagina through her clothes.
The Mother notified police and was told that during her police interview, C disclosed that the Father had punched and kicked her.[96]The Father denied ever committing any sexual offence against a child, including C. The Father believed that the Mother coached C to make an allegation that he sexually abused her to prevent the Father from spending time with X.[97] The Father stated, ‘the only time I ever dealt with that area was if I was changing a nappy.’[98] Mid-2022 SMS message calling the Father a ‘paedophile’ and ‘rapist’ The Father observes a text message from a friend of the Mother, accusing him of being a ‘paedophile’ and ‘rapist.’[99] Mid-2022 Mother takes Motor Vehicle from the Father’s residence The Father alleged he was gifted a Motor Vehicle from the Mother and that he retained it after separation.[100] The Father arrived home after work to find the Motor Vehicle missing and his belongings ‘thrown all over the front lawn.’ The Father alleged the Mother stole the car as she was part owner and wanted to recover it, as well as preventing him from spending time with X. The Police had told him at the time that the Mother had taken the vehicle but they could not recover it as it was in both his and the Mother’s name.[101] The Mother stated that she purchased a Motor Vehicle after receiving an inheritance from the passing of her first husband. In or about mid-2022 the mother organised to collect the Motor Vehicle from the Father. She later arranged for the vehicle to be registered in her name.[102] Late 2022 Father takes Motor Vehicle from a public carpark, leaving the Mother and X without transport The Mother alleged that the Father stole her Motor Vehicle from a shopping centre parking lot. The Mother and X were allegedly abandoned, leading her to contact the police and having to make arrangements to return home. The Police later contacted the Mother and returned some items that were in the Motor Vehicle but the vehicle was not returned.[103] During cross-examination, the Father conceded that he took the Motor Vehicle from the shopping centre carpark after coming across the car accidently, but emphasised that he did not steal it as the vehicle was his and the registration had lapsed.[104] [80] Father’s Trial Affidavit (n 16) [16].
[81] Ibid [21], [51].
[82] Mother’s Trial Affidavit (n 11) [17].
[83] Father’s Trial Affidavit (n 16) [17].
[84] Ibid [27].
[85] Mother’s Trial Affidavit (n 11) [26].
[86] Family Report May 2022 (n 20), 6.
[87] Mother’s Trial Affidavit (n 11) [29].
[88] Father’s Trial Affidavit (n 16) [30].
[89] Mother’s Trial Affidavit (n 11) [30(d)].
[90] Father’s Trial Affidavit (n 16) [35].
[91] Mother’s Trial Affidavit (n 11) [38].
[92] Ibid [40]-[42].
[93] Ibid [43].
[94] Father’s Trial Affidavit (n 16) [111].
[95] Ibid [32].
[96] Mother’s Trial Affidavit (n 11) [90]-[93].
[97] Father’s Trial Affidavit (n 16) [112].
[98] Family Report May 2022 (n 20) 5.
[99] Father’s Trial Affidavit (n 16) [83].
[100] Ibid [78].
[101] Ibid [78], [84].
[102] Mother’s Trial Affidavit (n 11) [58]-[61].
[103] Ibid [62]-[68]. The Mother stated in her trial affidavit that she filed an application in Court in August 2023 to retrieve the motor vehicle, which were on foot during the time of the trial.
[104] Trial: cross-examination of the Father.
The Mother’s allegation of violence — including sexual violence — towards her
As can be discerned from the table extracted above, the Mother alleged she has been subjected to family violence during the parties’ relationship, including verbal, physical, and sexual violence.[105] The Mother expressed that the Father would often escalate to anger and yelling, while she remained calm and exhausted.[106] The Mother also claimed that the Father had been very violent towards her pet by ‘punching it in the face’ that left it squealing in pain.[107] I note that there was no evidence that the Mother took the pet to a vet after the alleged assault.
[105] The sexual violence refers to charges against the Father.
[106] Family Report May 2022 (n 20) 14.
[107] Mother’s Trial Affidavit (n 11) [29].
The alleged sexual offences occurred in 2020, and were detailed in her police statement:
A few months back, in the last few months of [Mr Carrick] and my relationship things started getting bad. I suffer from [a medical condition] and I often feel very sick and in chronic pain. [One day], I was in the shower with [Mr Carrick], it must have been a weekend, we often showered together because it was quicker. Whilst we were in the shower, he gestured to me that he wanted to have sex, he was putting his hands on my body. I told him that I did not feel well and didn't want to. I made it clear to him that I didn't want to have sex. He then forced himself on me, I said no and told him but he continued. I just disassociated; I think it was a trauma thing. I don't even remember how long it went for. He didn't say anything whilst it was happening. After this incident things really started escalating, my health was deteriorating to the point that I would not leave the house and rapidly lost weight.
Another incident occurred [in late] 2020, I had recently told him that I didn't want to be together anymore. I had bought myself some new lingerie and was in my bedroom and had put it on. He walked in and asked what I was doing. I tried to cover myself up and put clothes on but he started putting his hands on my body and wanting sex. I turned away from him to put some clothes on when I heard the cupboard slide open. Next thing I know he slipped his […] belt around my neck, it is a standard […] belt. The belt was looped in itself and he began pulling to make it tighter. I was kind of in shock, I could feel it tighten around my neck to the point I could feel my circulation being restricted and all I could hear was throbbing in my head. My vision went dark and blurry but not to the point of unconsciousness. He then inserted his fingers into my rectum, whilst the belt was still around my neck. He then inserted his penis into my vagina and did what he wanted with me. When he finished, he loosened the belt and I got it off my neck. I don't remember where he went. I threw clothes on and left the room. It was like I went into auto pilot mode for a few days whilst I processed what had happened. A day or so afterwards I saw that he had thrown the belt into the bin. I later told my friends from uni what had happened.[108]
[108] Exhibit M7: Statutory Declaration.
It is noted that the police charges relate to two alleged incidents — one on a weekend in late 2021 and the second in late 2020.[109]
[109] Exhibit M1: Complaint details and Facts for the Prosecutor.
When the Mother was asked by Dr G whether the use of strangulation was a usual part of her sex life with the Father, she responded with ‘we had [sex toys] but belts were not brought into it. It’s natural for couples to explore.’[110]
[110] Family Report May 2022 (n 20) 14.
After Dr G met the Mother for the purpose of her first report, she contacted her therapist Ms Q to enquire as to whether the Mother had disclosed any family violence to her during the relationship. The Mother had been engaging with Ms Q since 2017. Dr G stated:
Phone Call to [Ms Q]
[Ms Q] said that she has been providing therapeutic counselling to [Ms Lambert] since 2017. She said that during this period of time, there has been a "pattern of non‑attendance".
[Ms Q] said that during the time she has worked with [Ms Lambert], she has primarily presented with "classic symptoms of depression". She said that this has often been in response to [Ms Lambert] "taking on too much". [Ms Q] said that she has not observed any indication of symptoms relating to posttraumatic stress disorder.
I asked [Ms Q] whether [Ms Lambert] had discussed any issues relating to family violence during her relationship with [Mr Carrick] and she said, "Nothing physical. She spoke about there being yelling and [Mr Carrick’s] fascination with masturbation". I asked [Ms Q] whether [Ms Lambert] had spoken about repeated incidents of sexual assault that allegedly occurred during their relationship and she said that the first time [Ms Lambert] raised the issue of being a victim of sexual assault was [earlier] this year, indicating that no disclosures were made during the relationship. I asked [Ms Q] how [Ms Lambert] presented during this disclosure and she said that she appeared to be "calm". She said that [Ms Lambert] had been frustrated that the police "didn't do anything" and that [Ms Lambert] had spoken about contacting other women who she believed had been sexually assaulted by [Mr Carrick].
[Ms Q] said that it was after the relationship with [Mr Carrick] ended that [Ms Lambert] began talking about her children's emotional and behavioural wellbeing being negatively impacted by [Mr Carrick]’s actions.[111] (emphasis added)
[111] Expert Report November 2021 (n 34) 11-12.
To corroborate her allegation the Mother tendered a video (‘the video’) of a discussion she had with the Father, [112] which she claimed contained his confession. The video showed the Father on camera looking dejected, showing no real emotion and providing short or inaudible responses through what can be described as persistent interrogation from the Mother. The exchange included the following:
[112] M5: USB video Mother’s conversation with the Father.
Mother: do you even understand what you did to me yesterday ... how would you describe it? like how?
Father: [inaudible] I’ve done to myself what I’ve done to you, not today I’m just saying like when I did do it
Mother: what are you saying?
Father: when I choked myself ... it what you described to me is what sort of what I was feeling when I did do it to myself
Mother: I don’t understand what you’re saying
Father: I think [inaudible] I constantly have been putting myself in your shoes about this situation that happened yesterday
Mother: this is what I mean … this is what I don’t understand
Father: I didn’t … at the time I didn’t realise how hard I was pulling
Mother: [Mr Carrick]... this is what I don’t understand about you … you do these awful things and then you act like you feel bad but like I said when we first started dating you used to tell me that […] was essentially crazy and she was saying that you forced yourself on her and that was all a lie … that it is just women being crazy … and then there that was that other girl who you also said was crazy because she accused you of raping her and when we first started dating I didn’t believe it because you were so nice to me … but then what did you do to me yesterday?
Father: I did that exact thing
Mother: which is what
Father: rape you … (emphasis added)
The Mother also tendered notes from Dr U, which she claimed also recorded an earlier confession.[113] The notes revealed that the Father had seen his doctor in late 2020 about feeling stressed about work and his partner. The next entry in late 2020 stated that the Father was feeling depressed because of difficulties in his relationship. His medication was increased, and the Father promised to connect with his psychiatrist. The note then reads:
[113] Exhibits M2: Dr U notes (‘Exhibit M2’); M4: Dr U and Dr W notes (‘Exhibit M4’).
after he went home
he gave me a call
saying he was not truthful
as it looks like he
enforced his partner to have sex without her willing to do so
he is saying .. it was almost rape
he was sorry about that
counselling[114] (emphasis added)
[114] Exhibit M2 (n 113).
Interestingly, there was a further entry in late 2020 — post the alleged sexual abuses — which notes that the Father and Mother were still separated but that he was supporting her and ‘he has been looking after their kids’.[115]
[115] Ibid.
The Mother also tendered notes from V Hospital relating to the Father’s admission to hospital in late 2020 after attempting self-harm:
Recent mood deterioration is in the context of recent relationship breakdown - had been with partner for 3.5 years and they share a [18] month old daughter [X] with 2 older girls from his partner’s previous relationship (aged 5 and 7). Had previously been diagnosed with masturbation addiction which has caused problems in their relationship which they have been unable to overcome. Additionally he admits to ‘2 instances where I sexually assaulted her’. The relationship ended a couple of months ago but they have remained living together to co-parent their daughter
He saw a psychiatrist via [telehealth] twice at the end of 2020 who had suggested referral to addiction psychologist. No changes were made to his medication.
Yesterday his ex-partner told him she was going out for dinner with some else. This prompted intrusive thoughts of self harm ([…]) and he subsequently texted his parents yesterday night. He reports around 6 months ago he attempted to [harm himself] but the intent was to cause pain rather than die. Currently he doesn’t have a plan to hurt himself.
His parents live locally and are mostly supportive but they have a complex relationship.
He is a non smoker. He drinks around 1-2 standard drinks per day. He reports no other drug use.
He works as [a tradesperson] full time and has continued to work.[116] (emphasis added)
[116] Exhibit M4 (n 113).
The notes of his psychiatrist, Dr W, who treated the Father in late 2020, were also tendered.[117] The Mother spoke to Dr W in late 2021:
[Ms Lambert] says he heard other girls claiming that [Mr Carrick] raped her ... [Ms Lambert] now can understand why she said that, says [Mr Carrick] has forced sex on [Ms Lambert] then he would turn if as if he is the victim and he lies a lot
They live in the same house but [Mr Carrick] switches off when she tries to talk - problem over the last two years and he just says “I don't know'' since [Ms Lambert] found out [Mr Carrick] masturbating over [someone else]
[Ms Lambert] wants to work on their relationship and would like to save his relationship if [Mr Carrick] has the possibility to change[118]
[117] Ibid.
[118] Ibid.
Dr W also mentions the alleged violence in correspondence with Dr U on 8 December 2020:
Past psychf atrlc history
Psych admissions nil
Rehab/detox - nil
Self-harm- once – [several] months ago, [self-harm] as a self-punishment. was not a suicidal intent.
Suicide attempt - never
Violence - there were two instances with his partner; once he forced sex on her; the other time, he tried to choke her with belt to ".spice things up"
Treatment trialled: not tried any other meds except [antidepressants][119] (emphasis added)
[119] Ibid.
The Mother’s allegations of violence towards C
The Mother stated in her Trial Affidavit that the Father pays her child support in the amount of $402.92 per week and that he had arrears of $277.38.[192] The Father does not address the issue in his Affidavit.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect to the child from any separation from either of their parents
[192] Mother’s Trial Affidavit (n 11) [178].
At trial, the Father sought sole parental responsibility and for X to live with him. Such an outcome would create a considerable disruption in X’s life and could only be contemplated if X was at an unacceptable risk of harm in the Mother’s care.
The Father argued that the Mother poses an ongoing psychological risk to X. He pointed to what he claims are fabricated allegations of violence against her and her children. He referred to Dr G’s concern that the Mother had likely coached D and C before they saw her. He said that the Mother is incapable of promoting a relationship with him and X and that X is at risk of being turned against him.
I do hold concerns about the Mother and her attitude to X’s relationship with the Father and his side of the family. As stated, there is a pattern of the Mother isolating her children from other members of their family. The Mother was also very slow to follow the Courts Order for the Father to spend supervised time with X. The Contact Centre notes evidence the Mother’s unwillingness to start the ordered time. The failure to follow court orders without a reasonable excuse is always of the highest concern for this Court.
As I have found previously, however, the Mother has, over more recent times, for the most part, complied with court orders and when questioned by Mr Trezise, she agreed that the Father’s time should at least advance to unsupervised day time contact. This demonstrated less rigid, child focused thinking and an ability to adapt, even if the court orders do not accord with her preferred outcome.
X’s happy presentation also confirmed that the Mother is caring for her well. There has been past school scrutiny of her care of her other children, but currently there is no criticism of her parenting. To move X from her stable arrangement would place her happiness at risk.
The Father also failed to put any meaningful information before the Court to establish how he would be able to take on the role of X’s primary carer. He did not call his partner, Ms L, as a witness. The risk of the disruption to X is too great for there to be a change of her primary care arrangements.
The Father, in the alternative, sought to change X’s time with him from supervised to unsupervised, and then to build progressively to alternate weekend and holiday time. The Mother accepted that she could cope with time moving to day only and unsupervised — particularly if he is not convicted. I have found that the Mother will cope if his time occurs overnight and advances, as promoted by the ICL, even if he is convicted. There is no evidence that X will not cope with such change. In her Addendum October 2023 Report, Dr G proposed a progression of the Father’s time — including overnight time. I repeat it below:
Given the positive reports provided by [S Service], it may now be appropriate to move towards semi-supervised visits. For example; visits commence at the Contact Centre, with [Mr Carrick] and [X] leaving the Centre for a period of time (e.g. 2 hours) to engage in an unsupervised activity (e.g. visiting a park). On return to the Centre, staff can observe [X]’s response to contact and gauge whether or not contact has been a positive experience. Providing [X]’s response to semi-supervised contact is positive, a logical progression would include a move towards longer semi-supervised contact and eventually unsupervised.
The rate at which [X]’s contact with [Mr Carrick] should progress to unsupervised contact will be determined by [X]’s response to semi-supervised visits. Given that [X] has responded well to the initial contact with [Mr Carrick], it is unlikely that a lengthy progression will be necessary before considering unsupervised contact; for example, 4-5 semi-supervised visits followed by 4-5 extended semi-supervised visits before moving towards unsupervised contact every alternate weekend. It is recommended that at least some of the extended semi-supervised visits occur in [Mr Carrick]’s home to allow [X] the opportunity to become familiar and comfortable with those surroundings before progressing to entirely unsupervised weekend contact. It is also recommended that [X] has the opportunity to experience unsupervised day visits with [Mr Carrick] in his home before progressing to overnight contact.[193] (emphasis added)
[193] Addendum Report October 2022 (n 42) 1-2.
I do note that if the Father is found guilty and serves a period of time in prison, his time away will likely be disruptive for X. His criminal proceedings are yet to finalise, leaving time for X to become further attached to him. Dr G opined that, if the Court determines that he does not pose an unacceptable risk to X, then he his time with X should resume after any term of imprisonment ends.
I accept Dr G’s evidence and am satisfied that even if the Father is to spend a period in prison, that his time with X should recommence upon his release and build in the manner similar to that proposed by the ICL.
Section 60CC(3)(e): the practical difficulty and expense of the children spending time and communicating with a parent
The Mother has previously stated that a reason for missing supervised time with the Father was the expense and difficulty of traveling to the Region GG Contact Centre. That burden will not be lessened if the Father’s time becomes unsupervised, as the Contact Centre will remain the point of changeover. This venue remains the best point to ensure that X is free of parental conflict, justifying any inconvenience or expense for either party.
Section 60CC(3)(f): the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
Counsel for the Mother submitted that if the Court ordered unsupervised time with the Father, the Mother would suffer such a level of distress that it would affect her capacity to parent.[194] I have found, however, that the Mother will be able to cope with the Father spending, progressively, a greater amount of time with X — including overnight time.
[194] This refers to the Re Andrew Principle which, in essence, the mother’s parenting capacity will be adversely impacted by the child spending time with the father and, as a result of that adverse impact, the child’s time with the father should be limited to supervised time or no time at all (Keane v Keane (n 171) [25]).
I am concerned about the capacity of the Mother to provide for the emotional needs of X — not only because of my finding that she likely coached and therefore sought to manipulate D and C, but because of her history of isolating her children from family and others. The Mother seems, to some extent, to treat her children as little adults. Under cross-examination from Mr Peterson, regarding the adult concepts that D and C had expressed to Dr G and her conclusion of coaching, the Mother said ‘I speak to the children like any other adult.’ When asked by Mr Trezise about X having a relationship with her grandparents she replied, ‘it’s her choice.’ She also stated on a few occasions ‘I support her autonomy.’ X is four years of age. She looks to her parents for guidance and direction, not the support of her autonomy.
I note and accept the comments of Dr G regarding the Mother’s motivations:
[Ms Lambert] presents as being genuinely motivated to prioritise [X]’s needs, with her wellbeing and safety being at the forefront of her mind. However, as outlined previously, [Ms Lambert]’s preoccupation with her own trauma may be compromising her judgement in regard to what is likely to be in [X]’s best interest.[195] (emphasis added)
[195] Family Report May 2022 (n 20) 24.
The Father’s attitude also concerned me. Taking the Mother’s motor vehicle from her when she was shopping, leaving her and X abandoned, was very poor behaviour, yet he seemed to believe that his actions were completely justified — they were not. That said, I note Dr G’s comments in her May 2022 Report:
Although [Mr Carrick] has clearly developed a negative attitude towards [Ms Lambert], he presents as being measured in his view of [Ms Lambert]. He identifies that she has positive attributes as a parent, however he is clearly frustrated by the barriers that he perceives as being deliberately created by [Ms Lambert] in order to prevent him from establishing a relationship with [X]. Given that [Mr Carrick] does not present as being motivated to malign [Ms Lambert], it is expected that his negative view of [Ms Lambert] is unlikely to impact on his capacity to prioritise [X]’s needs.[196]
[196] Ibid.
Both parties need to improve their attitude to the difficult responsibility of parenting. A less self-centred and acrimonious approach may assist.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child and each of the child’s parents
The Father states that he was diagnosed with general anxiety in 2017 and ‘feels as though he manages his symptoms relating to anxiety reasonably well.’[197] He also stated that he has good social support from his parents, current partner and close friends.[198]
[197] Ibid 8.
[198] Ibid.
The Mother has not been diagnosed with any condition, although Dr G’s assessments suggest that she may benefit from undertaking a further psychological assessment and engaging in ongoing therapy. Dr G opined that such support will assist her when the Father commences spending less regulated time with X.
The ICL has recommended that both parties attend a post separation course such as ‘E Program’ and the Father complete ‘at Circle of Security’ course. I agree and will so order.
The Mother is a practicing Christian and will continue to engage X in that faith.[199] The Father does not appear to have any issue with this occurring. The Mother is interested in education. The Father is skilled as a tradesperson. Both parties have endured and experienced much in their young lives. They know much that they can teach X and both can contribute to X becoming a well-rounded person — if they both choose to put her interests first.
[199] Mother’s Trial Affidavit (n 11) [175].
Section 60CC(3)(h)): If the child is Aboriginal or Torres Strait Islander
This factor is not relevant.
Section 60CC(3)(i): the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
This factor is dealt with in the Reasons above.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
This factor is dealt with in the Reasons above.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
The Father was subject to a Police Family Violence Order in early 2021.[200] It involved terms of ‘keeping the peace’ and for him to remain 10 metres from the Mother’s address.
[200] Exhibit F3: s69ZW Tasmania Police Report.
The Father stated that the order was made for the protection of the Mother after the parties had a disagreement. He did not accept that the Mother required protection, believing that she wanted to prevent him from collecting his personal belongings and spending time with X.
The Order expired in early 2022.
Section 60CC(3)(l): whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child
X is five years of age and has been subject to her parents’ litigation for a significant period of her life. It is without doubt damaging for any child to be subject to ongoing litigation and I will endeavour to craft orders that limit the possibility of future litigation for X. The Mother’s proposal is unlikely to achieve that end — the prospect of the Father not seeking to re-instigate proceedings to remove the requirement of supervision as X becomes older is remote. The parties have shown little ability to resolve parenting issues and it is likely that any change to the arrangements will need to be fought out in Court. I will do what I can to avoid that from occurring.
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks is relevant.
The ICL sought injunctive orders to keep X free from family violence and physical discipline. There is sufficient evidence to ground the making of those mutual injunctions. They are a further measure to ensure that X is safe in each party’s care.
My hope is that both parties will reflect on the volatility and conflict to which they have exposed the children in their care. Both parents are intelligent, industrious and have much to offer X. They must reset, accept the outcome and use this moment to re-shape the manner in which they deal with each other, so that X has the best chance of reaching her potential.
Parental responsibility
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[201] A parent does not have rights over their children — they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation, parents are not, by virtue of their changed relationship with one another, absolved from their responsibilities to maintain and care for their children.[202]
[201] FLA (n 57) s 61B.
[202] Ibid s 61C.
Parental responsibility can, however, be apportioned to suit a post-separation life.[203] It is important that, wherever possible, separated parents cooperate to promote their child or children’s best interests, as well as to help each other with the responsibilities and challenges of parenting. Where equal shared parental responsibility is ordered the Act requires major long-term decisions be jointly made. I note, however, a possible anomaly within s 65DAC — namely, subsections (2) and (3)(b). The need to come to joint decisions is, from the language of the provision, non-negotiable. Yet, the section also requires consultation in relation to the issue and the ‘genuine effort’ of all parties involved to come to a joint decision on that issue. It is entirely possible that all parties involved may make a ‘genuine effort’ to make a joint decision but, nevertheless, fail to do so. They may simultaneously comply with sub-section (3) and breach sub-section (2) — a problem for which s 65DAC appears to offer no resolution.
Presumption of equal shared parental responsibility
[203] Goode & Goode [2006] FamCA 1346 [39].
The presumption — legal principles and operation
The Act requires this Court to presume that it is in the children’s best interests for their parents to be equally responsible for major decisions affecting their long-term care and welfare. Section 61DA of the Act sets out the applicability of that presumption:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (emphasis added)
The operation of the presumption of equal shared parental responsibility is significant. The line of authority from the Full Court suggests that, if the presumption remains in place, equal shared parental responsibility must be ordered.[204] Section 61DA makes clear, however, that this outcome may not always be appropriate.
[204] Koyroyshs & Koyroyshs [2020] FamCA 626 [84] (Harper J), at which his Honour cites Marvel & Marvel (No 2) [2009] FamCAFC 101 and states that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.
Sections 61DA(2) and 61DA(4) provide for two ways by which equal shared parental responsibility may not be ordered, as are relevant to the case at hand.
Section 61DA(2) provides that, from the outset, the presumption will not apply if there are reasonable grounds to believe that a parent (or someone who resides with a parent) has engaged in child abuse or family violence. The standard set out in s 61DA(2) is important. It does not require proof of the fact that, on the balance of probabilities, child abuse or family violence took place. It requires only that the evidence provides reasonable grounds to believe that a person has engaged in child abuse or family violence. The wording of subsection (2) indicates a legislative intention to, in limited circumstances, prevent the application of the presumption notwithstanding that there may be no evidentiary finding of child abuse or family violence. Any actual finding of child abuse or family violence itself activates s 61DA(2), at which point there becomes no need to explore whether or not the presumption applies. Once s 61DA(2) is enlivened, whether through reasonable grounds of belief or a factual finding on the balance of probabilities, the presumption is excluded as a matter of law. In those circumstances there is no discretionary power by which the presumption may be revived.[205]
[205] Ibid [85].
The enquiry as to an order for parental responsibility always, with the exception of s 61DA(2) and 61DA(3) (noting that subsection (3) is irrelevant in this case), commences with the presumption that equal shared parental responsibility is in the child’s best interests. This is not to say that the presumption, once in place, is set in stone.
Section 61DA(4) accounts for instances in which, although the presumption applies from the outset of the enquiry, an order for equal shared parental responsibility may nevertheless not serve the child’s best interests. If s 61DA(2) applies, s 61DA(4) never comes into operation.[206] Subsection (4) provides for the presumption to be rebutted — namely, for it to be ousted from consideration, despite the fact that it was initially applicable. To rebut the presumption a judge must determine, on the balance of probabilities, that it would not be in the child’s best interests to order equal shared parental responsibility. The grounds upon which the presumption may be rebutted are significantly broader than those given in s 61DA(2). A court must, therefore, reach ‘a level of satisfaction on the evidence … that it would not be in the interests of the child for [the presumption] to apply’ and must give ‘explicit and cogent reasons why the presumption should be rebutted.’[207]
[206] Boyce & Boyce [2015] FamCAFC 60 [21]-[22] (Bryant CJ, Ryan and Kent JJ).
[207] Dundas & Blake [2013] FamCAFC 133, [57], [61] (Bryant CJ, May and Ainslie-Wallace JJ). See also Withers & Russell (n 60), [426]-[428], in which the presumption was rebutted on the basis of the parties’ ongoing disagreements about major long-term issues, to the extent that an order for equal shared parental responsibility would not be in the best interests of the children subject to those proceedings.
Applicability of the presumption of equal shared parental responsibility in this case
Both parties report instances of family violence within the relationship, with the Mother alleging serious incidents of sexual harm perpetuated upon her by the Father. I have not made findings as to whether either party has engaged in family violence towards the other, but even taking the most benign view of the competing allegations, there is sufficient evidence to believe that one or both parents have engaged in behaviour that meets the wide definition of family violence against the other and, as such, the presumption of equal shared parental responsibility is rebutted.
This does not, however, mean that I no longer have jurisdiction to make an order for equal shared parental responsibility. Warnick J in Robertson & Sento [2009] FamCAFC 49, though in dissent, plainly sets out the operation of s 61DA(2) by reference to the words therein:
41.[s 61DA(2)] does not say that, if there are reasonable grounds to believe one of the nominated circumstances exists, equal shared parental responsibility, qualified or unqualified, shall not be ordered, but merely that the presumption does not apply (at all).[208]
[208] Robertson & Sento [2009] FamCAFC 49, [41]. His Honour dissented on limited grounds; I have extracted his reasoning because his assessment is consistent with the wording of s 61DA(2), and with the concept of the presumption as a legal mechanism which does not prevent an order being made in pursuance of s 60CA.
This Court remains bound under s 60CA to consider the child’s best interests as a paramount consideration in making any parenting order. If the evidence suggests that it is in the child’s best interests for there to be an order for equal shared parental responsibility, then I may make that determination and craft an order accordingly.
Mr Trezise and Mr Peterson urged me to make an order for equal shared parental responsibility, notwithstanding the serious allegations raised by each parent. If such an order is made it requires both parents to make joint decisions — or at a minimum genuinely consult — about X’s major long-term issues.
Under cross-examination from Mr Trezise, the Father, rather insightfully, clarified that his hope was not so much to make joint decisions but to be involved in the decision making — “I want to have a say, be made aware’.
It is fair to say that each party holds the other in very low regard and neither has communicated with the other for a long time. If I were to force the parties to reach joint decisions, I would be asking that she does so with a man who raped and strangled her — in the case of the Mother — or that he does so with the woman who made up rape and assault allegations — in the case of the Father. The prospect of them being able to consult and reach joint decisions is unrealistic and potentially psychological damaging.
In these circumstances I will not make an order for equal shared parental responsibility. Rather the Mother, as X’s primary carer, will have sole responsibility for such decisions. There will, however, be highly regulated orders requiring the Mother to advise the Father of an impending major long term decision and seek his input. The final decision will, however, be hers. The Father will also be furnished with all and any information regarding X including her school and extracurricular activities.
Equal time or substantial and significant time?
Where there is an order for equal shared parental responsibility, I must consider whether there should be an order for an equal time arrangement or, alternatively, a substantial and significant time arrangement. As explained by the High Court in MRR & GR, either arrangement must be reasonably practicable and in the child’s best interests if it is to be ordered.[209] If ordering equal time is in the child’s best interests and otherwise reasonably practicable then I must consider making an order to provide them with equal time arrangements. If I do not order equal time, I must consider whether the child should spend substantial and significant time with one of their parents. I will undertake this assessment, again, with reference to the child’s best interests and whether spending substantial and significant time with both parents is reasonably practicable.[210]
[209] MRR & GR (n 61), [37]; FLA (n 57) s 65DAA.
[210] FLA (n 57) s 65DAA(2), 65DAA(5).
When considering the question of reasonable practicability, I am required to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the Court considers relevant.[211]
[211] Ibid s 65DAA(5).
Given that I am not making an Order for equal shared parental responsibility, I am not obliged to consider whether an equal or significant and substantial time arrangement is practicable and in X’s best interests. Even if I were, it would not be in X’s best interest to order such time. The poor volatile history and the poor level of communication makes such arrangements impracticable. The Father’s time will now build slowly to an alternate weekend arrangement during school terms and eventually shared time in the school holidays. I have no doubt that such an arrangement is one that meets X’s best interests.
Conclusion regarding parenting matters
Having considered all the evidence and the relevant legislative pathway, I am satisfied that X’s best interests will be met if most of the orders proposed by the ICL are implemented — but with a more gradual build-up of the Father’s time. I have also slightly amended his draft for clarity and ease of reading.
I am deeply aware of the potential impact on one or both parents from the result of the criminal charges that the Father must face. One party or the other will feel buoyed by the outcome and justified about the position they brought to this Court. As I have found, the Orders that I will make in this case are not dependent upon the outcome of those proceedings, and I am satisfied that X’s best interest are met by the Orders I make, whether or not the Father is found guilty.
It is incumbent on both parties to make the Orders that I make work. If they can focus their energy on X’s future, and put aside their animosities, then X has a strong chance of surviving the collapse of her parents’ relationship and meeting her potential.
Ultimately, X’s future is dependent on the approach the parties take from now. I trust both parents will now concentrate on X’s needs, and not their own. Time will tell.
I make the Orders set out at the commencement of these Reasons.
I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 30 July 2024
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