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
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
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…
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CaseChat Overview and Summary
The court found that the father posed an unacceptable risk to the child due to his criminal charges and allegations of family violence. The court also concluded that the mother's parenting would be significantly impacted if the child spent unsupervised time with the father, and that the mother had not coached her other children to provide negative views of the father. The court further determined that the child should not live with the father, given the findings regarding the father's risk to the child. In light of these findings, the court ordered that all existing parenting orders be discharged, and that the mother have sole parental responsibility for the child. The father was granted supervised contact with the child, starting with semi-supervised visits on alternate Fridays and Saturdays, gradually increasing to unsupervised time as the child grows older and attends full-time school. Special occasions, such as Christmas and Easter, were also allocated between the parents on an alternating basis each year. The court further ordered that both parents complete specific programs and use the Our Family Wizard App for communication, and that they refrain from making derogatory remarks about each other in front of the child. The court also restrained the parents from exposing the child to violence or physical discipline.
The court's final orders included specific arrangements for the child's time with the father, with a focus on supervised contact transitioning to unsupervised as the child grows older. The mother was granted sole parental responsibility, and both parents were required to complete certain programs and use a designated communication method. The court also imposed restrictions on the parents' behaviour and communication in the presence of the child, to ensure the child's safety and well-being. All existing applications were dismissed, and the form of the order was subject to review for any minor errors or variations.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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