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Carrick & Lambert (No 2)

Carrick & Lambert (No 2)

Case [2025] FedCFamC2F 608 13 May 2025

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carrick & Lambert (No 2) [2025] FedCFamC2F 608

File number(s): LNC 576 of 2021

Judgment of: JUDGE TURNBULL

Date of judgment: 13 May 2025

Catchwords: FAMILY LAW – PARENTING – CONTRAVENTION APPLICATION – Where the mother concedes that she contravened final parenting orders, resulting in the father spending no time with the child, because the child talked about holding a ‘secret’ – Whether the Mother has a reasonable excuse for contravening the Orders – Whether the breach was for long as necessary to protect the health and safety of the child

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Attreed & Attreed [1980] FamCA 81

Caballes & Tallant [2014] FamCAFC 112

Dobbs & Dobbs (2021) FLC 91-021

Fermikis & Fermikis [2024] FedCFamC1F 879

Galvis & Galvis [2024] FedCFamC1A 123

Jackson & Fordham (1995) FLC 92-561

Jets & Maker [2010] FamCAFC 55

Jones v Dunkel (1959) 101 CLR 298

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Nieuwstraten & Nieuwstraten [1987] FamCA 11

Sahari & Sahari [1976] FamCA 59

Stevenson & Hughes [1993] FamCA 14

TVT & TLM [2005] FMCAfam20

Division: Division 2 Family Law

Number of paragraphs: 34

Date of hearing: 11 April 2025

Place: Hobart

Counsel for the Applicant: Mr Petersen

Solicitor for the Applicant: Petersen Legal

Counsel for the Respondent: Appearing in person
ORDERS

LNC 576 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CARRICK

Applicant

AND:
MS LAMBERT

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

13 MAY 2025

THE COURT ORDERS THAT:
1.On 13 September 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse.
2.On 27 September 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse
3.On 11 October 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse.
4.On 25 October 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse.
5.The matter is adjourned to 9:30am 11 June 2025 for submissions as to penalty.
6.By 4:00pm 27 May 2025, the Father will make, file, and serve:
(a)A fully completed financial statement; and
(b)Written submissions in relation to the questions of penalty and costs.

7.By 4:00pm 6 June the Mother will make, file, and serve a fully completed financial statement and any written submission in relation to the question of penalty and/or costs.

THE COURT NOTES THAT:
A.The Court has referred the Mother to, and will provide the Mother with a copy, of section 70NCA and section 70NBF of the Family law Act 1975 (Cth).
B.The Father’s time is scheduled to occur as per the orders, on 16 May 2025 and 31 May 2025.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carrick & Lambert (No 2)

Details

AGLC: Carrick & Lambert (No 2) [2025] FedCFamC2F 608
Case: [2025] FedCFamC2F 608
Decision Date: 13 May 2025

CaseChat Overview and Summary

In the matter of Carrick and Lambert, the Federal Circuit and Family Court of Australia addressed a dispute concerning contraventions of final parenting orders. The father, Mr Carrick, filed an application against the mother, Ms Lambert, alleging that she had contravened specific parenting orders, resulting in the child spending no time with the father. The mother conceded the contraventions but argued that she had a reasonable excuse for doing so.

The primary legal issue before the court was whether Ms Lambert had a reasonable excuse for contravening the final parenting orders and whether the duration of the contraventions was necessary to protect the health and safety of the child. The court was required to examine the circumstances under which the contraventions occurred, including the mother's explanation that the child had mentioned holding a'secret', and assess the reasonableness of her actions under the relevant provisions of the Family Law Act 1975.

In its judgment, the court found that Ms Lambert had contravened the final parenting orders on specified dates without a reasonable excuse. The court examined the mother's actions and the evidence provided, ultimately concluding that the contraventions were not justified under the circumstances. The court adjourned the matter to determine the appropriate penalties and ordered both parties to provide financial statements and written submissions regarding the penalty and costs. The court also referred Ms Lambert to relevant sections of the Family Law Act and noted the scheduled times for the father's future contact with the child.

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

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

13 MAY 2025

THE COURT ORDERS THAT:

1. On 13 September 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse.

2. On 27 September 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse

3. On 11 October 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse.

4. On 25 October 2024 MS LAMBERT contravened Order 5(a) of the Orders made on 30 July 2024 without reasonable excuse.

5. The matter is adjourned to 9:30am 11 June 2025 for submissions as to penalty.

6. By 4:00pm 27 May 2025, the Father will make, file, and serve:

(a) A fully completed financial statement; and

(b) Written submissions in relation to the questions of penalty and costs.

7. By 4:00pm 6 June the Mother will make, file, and serve a fully completed financial statement and any written submission in relation to the question of penalty and/or costs.

THE COURT NOTES THAT:

A. The Court has referred the Mother to, and will provide the Mother with a copy, of section 70NCA and section 70NBF of the Family law Act 1975 (Cth).

B. The Father’s time is scheduled to occur as per the orders, on 16 May 2025 and 31 May 2025.

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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Citations

Carrick & Lambert (No 2) [2025] FedCFamC2F 608

Cases Citing This Decision

No citing cases yet.

Cases Cited

Fermikis & Fermikis [2024] FedCFamC1F 879
Citation 1 (Para 14)

…Carter J helpfully further explained the approach in Fermikis & Fermikis [2024] FedCFamC1F 879: Accordingly, it is not a question of whether the respondent was of the view that the carrying out of the order was not in the child’s best interests. Rather, the Court must be satisfied that the respondent believed it was nec…
Galvis & Galvis [2024] FedCFamC1A 123
Citation 2 (Para 4)

…ch is pertinent to the imposition of penalty is usually different from that which is relevant to the anterior question of fault. [14] Galvis & Galvis [2024] FedCFamC1A 123.…
Jets & Maker [2010] FamCAFC 55
Citation 3 (Para 15)

….[7] [4] Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596; Jackson & Fordham (1995) FLC 92-561; Dobbs & Dobbs (2021) FLC 91-021; Jets & Maker [2010] FamCAFC 55. [5] Sahari & Sahari [1976] FamCA 59; (1976) FLC 90-086; Attreed & Attreed [1980] FamCA 81; (1980) FLC 90-907; Stevenson & Hughes [1993] FamCA 14; (1…
Mead v Mead [2007] HCA 25
Citation 4 (Para 4)

…14] In contempt proceedings, it is usual for the question of penalty to be separately addressed after the findings of contempt are made ( Mead v Mead (2007) 235 ALR 197 at 198). The same procedure should apply in respect of contravention proceedings. That is because the evidence which is pertinent to the imposition o…
TVT & TLM [2006] FMCAfam 20
Citation 5 (Para 14)

…se, if it results in risk of harm to the child’s emotional wellbeing.” I agree with his Honour’s observations in that case and in TVT & TLM [2006] FMCAfam 20 at [40], that the circumstances in which a child’s distress might amount to a reasonable excuse are likely to be rare unless there has been something untoward…
WJP & TP [2002] FMCAfam 315
Citation 6 (Para 9)

…ed to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See P & P [2002] FMCAfam 315 (Unrep) at [14]. (h) It must be noted that ‘an invitation can be designed to persuade the child that this is something which the mother encourages or approves of, or i…
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Citation 7 (Para 2)

…the Mother’s excuse was reasonable nor were her actions necessary to protect the health or safety of X. [13] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.…
Nieuwstraten & Nieuwstraten [1987] FamCA 11
Citation 8 (Para 15)

…LC 90-907; Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363. [6] Sahari & Sahari [1976] FamCA 59; (1976) FLC 90-086; Nieuwstraten & Nieuwstraten [1987] FamCA 11; (1987) FLC 91-826; Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363. [7] Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596. ALLEGED CONT…
Jones v Dunkel [1959] HCA 9
Citation 9 (Para 5)

…an not that the motivation for X’s non-attendance was not illness, but rather the Mother’s misplaced concern regarding the ‘secret’. [10] Jones v Dunkel (1959) 101 CLR 298.…
Jones v Dunkel [1959] HCA 8
Citation 10 (Para 5)

…motivation for X’s non-attendance was not illness, but rather the Mother’s misplaced concern regarding the ‘secret’. [10] Jones v Dunkel (1959) 101 CLR 298.…
Caballes & Tallant [2014] FamCAFC 112
Citation 11 (Para 15)

…ements should be strictly complied with and not lightly departed from, [6] and prejudice to the respondent must be avoided.[7] [4] Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596; Jackson & Fordham (1995) FLC 92-561; Dobbs & Dobbs (2021) FLC 91-021; Jets & Maker [2010] FamCAFC 55. [5] Sahari & Sahari [1976]…
Sahari & Sahari [1976] FAMCA 59
Citation 12 (Para 15)

…AFC 112; (2014) FLC 93-596; Jackson & Fordham (1995) FLC 92-561; Dobbs & Dobbs (2021) FLC 91-021; Jets & Maker [2010] FamCAFC 55. [5] Sahari & Sahari [1976] FamCA 59; (1976) FLC 90-086; Attreed & Attreed [1980] FamCA 81; (1980) FLC 90-907; Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363. [6] Sahari & Sahari…
FLC 90-086; Attreed & Attreed [1980] FAMCA 81
Citation 13 (Para 15)

…LC 92-561; Dobbs & Dobbs (2021) FLC 91-021; Jets & Maker [2010] FamCAFC 55. [5] Sahari & Sahari [1976] FamCA 59; (1976) FLC 90-086; Attreed & Attreed [1980] FamCA 81; (1980) FLC 90-907; Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363. [6] Sahari & Sahari [1976] FamCA 59; (1976) FLC 90-086; Nieuwstraten & Nie…
Stevenson v Hughes [1993] FAMCA 14
Citation 14 (Para 9)

…behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep … Stevenson v Hughes (1993) FLC 92-363; (d) Similarly, a mere request that the child telephone, or come to the telephone, is insufficient; Once an Order for contact has been made, it…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention

File number(s):	LNC 576 of 2021
Judgment of:	JUDGE TURNBULL
Date of judgment:	13 May 2025
Catchwords:	FAMILY LAW – PARENTING – CONTRAVENTION APPLICATION – Where the mother concedes that she contravened final parenting orders, resulting in the father spending no time with the child, because the child talked about holding a ‘secret’ – Whether the Mother has a reasonable excuse for contravening the Orders – Whether the breach was for long as necessary to protect the health and safety of the child
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Attreed & Attreed [1980] FamCA 81 Caballes & Tallant [2014] FamCAFC 112 Dobbs & Dobbs (2021) FLC 91-021 Fermikis & Fermikis [2024] FedCFamC1F 879 Galvis & Galvis [2024] FedCFamC1A 123 Jackson & Fordham (1995) FLC 92-561 Jets & Maker [2010] FamCAFC 55 Jones v Dunkel (1959) 101 CLR 298 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Nieuwstraten & Nieuwstraten [1987] FamCA 11 Sahari & Sahari [1976] FamCA 59 Stevenson & Hughes [1993] FamCA 14 TVT & TLM [2005] FMCAfam20
Division:	Division 2 Family Law
Number of paragraphs:	34
Date of hearing:	11 April 2025
Place:	Hobart
Counsel for the Applicant:	Mr Petersen
Solicitor for the Applicant:	Petersen Legal
Counsel for the Respondent:	Appearing in person

LNC 576 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CARRICK Applicant
AND:	MS LAMBERT Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	13 MAY 2025