Lamb & Dorsey

Case [2021] FCCA 1783

FEDERAL CIRCUIT COURT OF AUSTRALIA

Lamb & Dorsey [2021] FCCA 1783

File number(s): TVC 11 of 2020
Judgment of: JUDGE BOWREY
Date of judgment: 4 August 2021
Catchwords: FAMILY LAW – parenting – child living with the Mother up until 6 years old in late 2018 – child then comes to stay with the paternal grandparents at the Mother’s request – dispute about whether the move to grandparents was short term or long term – Mother seeks child return to live with her – change of living arrangements would mean transfer from North Queensland to Victoria – child has learning/behavioural difficulties – Family Report and an expert witness support child’s return to Mother
Legislation: Family Law Act 1975 (Cth)
Cases cited: Prendergast & Parsons (No 12) [2007] FamCA 1233
Number of paragraphs: 235
Date of hearing: 19-21 July 2021
Place: City F
Counsel for the Applicant: Mr Van Der Weegen
Solicitor for the Applicant: Freedom Law
The Respondent: The Respondent appearing on his own behalf
The Interveners: The First and Second Interveners appearing on their own behalf
Counsel for the Independent Children's Lawyer: Ms Lawrence
Solicitor for the Independent Children's Lawyer: Keir Steele Waldon Lawyers

ORDERS

TVC 11 of 2020
BETWEEN:

MS LAMB

Applicant
AND:

MR DORSEY

Respondent

MR B DORSEY

First Intervener

MS DORSEY

Second Intervener

ORDER MADE BY:

JUDGE BOWREY

DATE OF ORDER:

4 AUGUST 2021

THE COURT ORDERS THAT:

1.All previous orders regarding the child X born in 2012 (‘the child’) be discharged.

Parental Responsibility

2.The Mother have sole parental responsibility for the major long term decisions relating to the child’s care, welfare and development. For the purpose of this order, parental responsibility includes but is not limited to:

(a)Any medical or health matter concerning the child including those which require the child to undergo any medical treatment or intervention or the child being prescribed any medication by a medical practitioner;

(b)Matters relating to the education of the child including but not limited to, the choice of school and curriculum;

(c)Disciplinary matters;

(d)Matters concerning the religion, faith and/or culture of the child;

(e)Matters concerning the social development and sporting activities of the child;

(f)Generally, any matter regarding the child in respect of which a parent should be informed or consulted having regard to Part VII the Family Law Act.

3.The Mother must advise the Father in writing by email or text message, of all major decisions which she makes for the child, within seven (7) days of making the decision.

Residence

4.The child live with the Mother.

5.The child shall transfer into the Mother’s care at the Mother’s cost, at the end of the current Queensland school term, so as to be able to commence term four at a City D, Victoria, primary school.

6.Each parent do all acts and sign all documents necessary to:

(a)Complete any necessary notification to the child’s present school Suburb E, to confirm the child in ceasing his enrolment there;

(b)Enrol the child at a primary school in City D as chosen…

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Lamb & Dorsey [2021] FCCA 1783
Case
[2021] FCCA 1783
Decision Date

CaseChat Overview and Summary

This case concerned an application by Ms Lamb (the Mother) against Mr Dorsey (the Father) regarding parenting arrangements for their child, X, born in 2012. The First Intervener was Mr Dorsey (the Father) and the Second Intervener was Ms Dorsey (the Paternal Grandmother). The matter came before Justice Bowrey of the Federal Circuit Court of Australia.

The court was required to determine the best interests of the child, X, in relation to his residence, parental responsibility, and communication and time spent with each parent and the paternal grandparents. Specifically, the court had to consider whether X should live with the Mother in City D, Victoria, or continue to reside in City F, Queensland, and how parental responsibility for major long-term decisions should be allocated. The court also needed to establish appropriate arrangements for X's time with the Father and paternal grandparents, including holiday periods and communication.

Justice Bowrey's reasoning was guided by the paramount consideration of X's best interests. The court accepted the recommendations of the Family Report writer, the Mother's psychologist, and the Independent Children's Lawyer, all of whom supported X living with his Mother. The court found that X would benefit from living with his Mother and that not making this change could result in future emotional and psychological loss for him. While acknowledging the significant input the Father and paternal grandparents had in X's life and the potential uncertainty of a substantial move, the court concluded that it was in X's best interests to reside with his Mother. The court also ordered that X spend holiday time with his Father and paternal grandparents and maintain regular communication with them.

The court ordered that all previous orders regarding the child X be discharged. The Mother was granted sole parental responsibility for major long-term decisions concerning X's care, welfare, and development. X was ordered to live with the Mother and to transfer to her care at the end of the current Queensland school term to commence school in City D, Victoria. The orders also detailed specific arrangements for X's time with the Father and paternal grandparents during school holidays, communication protocols, and provisions for ongoing health and educational support for X, including counselling and assessments. The court also requested the Family Consultant to supervise and assist in the compliance with the Parenting Order, particularly in explaining its effect to X.

Orders

Orders of the court

TVC 11 of 2020

BETWEEN:

MS LAMB

Applicant

AND:

MR DORSEY

Respondent

MR B DORSEY

First Intervener

MS DORSEY

Second Intervener

ORDER MADE BY:

JUDGE BOWREY

DATE OF ORDER:

4 AUGUST 2021

THE COURT ORDERS THAT:

1. All previous orders regarding the child X born in 2012 (‘the child’) be discharged.

Parental Responsibility

2. The Mother have sole parental responsibility for the major long term decisions relating to the child’s care, welfare and development. For the purpose of this order, parental responsibility includes but is not limited to:

(a) Any medical or health matter concerning the child including those which require the child to undergo any medical treatment or intervention or the child being prescribed any medication by a medical practitioner;

(b) Matters relating to the education of the child including but not limited to, the choice of school and curriculum;

(c) Disciplinary matters;

(d) Matters concerning the religion, faith and/or culture of the child;

(e) Matters concerning the social development and sporting activities of the child;

(f) Generally, any matter regarding the child in respect of which a parent should be informed or consulted having regard to Part VII the Family Law Act.

3. The Mother must advise the Father in writing by email or text message, of all major decisions which she makes for the child, within seven (7) days of making the decision.

Residence

4. The child live with the Mother.

5. The child shall transfer into the Mother’s care at the Mother’s cost, at the end of the current Queensland school term, so as to be able to commence term four at a City D, Victoria, primary school.

6. Each parent do all acts and sign all documents necessary to:

(a) Complete any necessary notification to the child’s present school Suburb E, to confirm the child in ceasing his enrolment there;

(b) Enrol the child at a primary school in City D as chosen by the Mother;

(c) Provide authority to Suburb E School to provide copies of records and all relevant information regarding the child, to the child’s school in City D;

(d) Ensure that the Mother and the Father are listed as contacts and persons to whom information is to be provided, for the child’s school in City D;

(e) Engage what may generally be described as learning support assistance for the child through the child’s school in City D or otherwise as arranged by the Mother.

7. The Mother must advise the Father in writing not less than 28 days beforehand if she intends to relocate where she and the child live, from City D Victoria.

Care, Welfare, Communication and Time Spent

8. The Mother, the Father and the Paternal Grandparents as the case may be, have responsibility for the day to day care, welfare and development of the child when he is in their care.

9. Unless otherwise agreed in writing between the parties, the child spend time with the Father and the child’s Paternal Grandparents as follows:

(a) For all of the Victorian gazetted school holidays at the end of term one;

(b) For all of the Victorian gazetted school holidays at the end of term two;

(c) From 2022, for one half of the Victorian gazetted school holidays at the end of term three with the Mother to have the first half of those holidays in odd numbered years and the Father to have the first half of those holidays in even numbered years, with either parent then having the second half of those holidays and on an alternating basis in future years;

(d) For one half of the Victorian gazetted school holidays at the end of term four (Christmas) with the Mother to have the first half of those holidays in odd numbered years and the Father to have the first half of those holidays in even numbered years, with either parent then having the second half of those holidays and on an alternating basis in future years;

(e) For the purpose of this paragraph, school holidays commence on the Saturday immediately following the end of the school term and conclude on the Saturday preceding the commencement of the next school term. The midpoint of school holidays is the Saturday closest to one half of the school holidays as defined in this subparagraph.

10. The Father and the Paternal Grandparents are to arrange and pay the cost of the child’s airfare from Melbourne Airport to City F Airport and return, for the time spent in paragraph 9.

11. The Father and the Mother are to ensure that the child is taken to and collected from the airports in Melbourne and City F respectively, for the flights arranged for the child.

12. The Mother and the Father as the case may be, must do all acts and sign all documents necessary to facilitate the child’s travel to and from Queensland in accordance with this order and to comply with all government directions with respect to COVID-19 arrangements, including but not limited to obtaining a Queensland Border Declaration and/or Pass and a Victorian Border Declaration and/or Pass for the child.

13. The child have video, FaceTime or telephone communication with the parents and the Paternal Grandparents at all times agreed between the parties and failing agreement, at the following times:

(a) 6:00pm or such other times as may be agreed, on each Sunday, Tuesday, and Friday;

(b) Christmas morning at 10:00am;

(c) On the Birthday of the Mother and of the Father, at 6:00pm or such other time as may be agreed;

(d) On the child’s Birthday at 6:00pm or such other time as may be agreed;

(e) The right to have a video, FaceTime or telephone communication with the child shall apply to the Mother, Father and Paternal Grandparents as the case may be and for any of those parties with whom the child is not spending time on the relevant day.

14. The parents and the Paternal Grandparents shall not:

(a) Denigrate the other parties or their family to or in front of or within the hearing of the child;

(b) Allow other persons to denigrate the parents or Paternal Grandparents to or within the hearing of the child;

(c) Discuss these proceedings with the child.

15. The Mother, Father and Paternal Grandparents shall:

(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) Speak of the other parent and the grandparents respectfully;

(c) Not record any communications between the child and his parents and Grandparents;

(d) Use their best endeavours to ensure continuation of the positive relationship between the child and all parties.

16. The Mother shall keep the Father informed of the child's doctors, healthcare and other treatment providers and advise the Father of any change to the child's health care professionals within seven (7) days of any change.

17. Each party shall inform the other parties to this Order as soon as reasonably practical, of any medical condition, significant health issue or significant illness suffered by the child.

18. The Mother shall keep the Father informed of any school, educational facility or extracurricular activity of the child.

19. Each parent shall keep the other parent informed at all times of their residential address and contact telephone number and advise the other parent at least seven (7) days after any change to their address and/or telephone number.

Authorities

20. This Order acts as an authority for the child’s doctors, healthcare and other treatment providers to provide each parent with information that they are lawfully able to provide about the child.

21. This Order acts as an authority for the child’s school and extracurricular activity provider to provide each parent with information that they are lawfully able to provide about the child.

22. If there is a cost associated with the provision of information or documents under this Order whether from the child’s doctors, health care and other treatment providers or school or extracurricular activity provider, the cost shall be paid by the parent requesting the information.

Ongoing health arrangements

23. The Mother shall continue to engage in counselling with Ms G psychologist for personal support and therapy until such time as the Mother and Ms G determine that it is appropriate to cease that counselling.

24. The Mother shall do all acts and sign all documents necessary to arrange for the child to attend counselling with a psychologist near where the child lives and to take steps to obtain a cognitive assessment of the child. The Mother shall inform the Father of the name and business address/details of the psychologist engaged for the child, within seven (7) days of making the necessary arrangements.

25. The Father shall be permitted to participate in any intake interview process required by the psychologist referred to in the previous paragraph. The child psychologist is authorised pursuant to this Order to provide to each parent all information that they are lawfully able to provide about the child (and recognising that some discussions between the psychologist and the child may be regarded as confidential by them) in accordance with the authority contained in paragraph 20 of this order.

26. Until the child has engaged with a psychologist in Victoria, he shall continue consulting with Ms H, psychologist. This order shall be authority for Ms H to provide information including copies of her file and written records, to the child’s psychologist appointed in Victoria should that psychologist request relevant information regarding the child.

27. Pursuant to s. 121 of the Family Law Act, the parties are permitted to provide to the child's present psychologist Ms H, the Mother's psychologist Ms G and to the psychologist appointed for the child in Victoria, copies of the following documents:

(a) Updated Family Report dated 21 October 2020;

(b) This Order;

(c) Reasons for judgment.

28. Save for an emergency, should the parties be in dispute about parenting arrangements for the child, they shall attend family dispute resolution prior to making any application to this court.

Advice to child

29. In accordance with s. 65L of the Family Law Act, the Family Consultant at the City F Registry of the Federal Circuit Court is requested to supervise and assist in the compliance with this Parenting Order and in particular, to meet with the child in the company of the Independent Children's Lawyer at the City F Registry, for the purpose of explaining the effect of this Parenting Order to the child, in particular the relocation of the child's residence to live with his Mother in Victoria.

30. The Independent Children's Lawyer is discharged after the completion of paragraph 29 of this order.

NOTATION

A. The transition period and arrangements referred to in paragraphs 5 and 6 of this order are intended to provide the child with an orderly transfer between schools in City F and City D and to provide the child with educational and psychological assistance necessary for that transfer.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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

In a number of the quoted paragraphs from the Family Reports set out above, not the whole of the paragraph written by the Family Consultant is included. I am comfortable that what is recorded above accurately presents the relevant content and the opinion or recommendation of the Report Writer.EVIDENCE Because three of the five parties in the hearing (counting the ICL) were self-representing, I have set out in more than usual detail the comments in the Family Report and the evidence which I recorded.MOTHER The Mother gave evidence first. The Mother's evidence was presented in an appropriate manner. The Mother was careful with her replies in cross-examination and answered each question on the point raised. She did not appear to exaggerate not did she argue with the questioner. The Mother was an impressive witness and I believed her evidence. Cross-examination on behalf of the respondents was carried out by the Paternal Grandmother Mrs Dorsey. The respondents were acting on their own behalf. Mrs Dorsey’s questioning of the Mother was generally on point although until a number of objections were taken by Counsel for the Mother, it could be said that some of the questions commenced with a statement often a self-serving one, by Mrs Dorsey. The Mother said that the Father was guilty of family violence against her. In relation to the Mother's description of the Father forcing himself on her (my description) in a sexual manner (referred to in paragraph 58 and 88 and 89 of the Mother's Affidavit filed 21 June) the Mother said that her agreeing to have sex with the Father following pressure from him, “wasn't rape, it was pressure”. Under cross-examination by Mrs Dorsey, the Mother maintained her position that X should live with her. She was open to X having regular contact with the Father and the Paternal Grandparents, both personally face to face during school holidays and regularly by phone or video. The Mother said that life was going well for her in City D. She moved there in late 2019. The Mother has accommodation which is comfortable for her and adequate in size for X and for her daughter L when they live with or spend time with her. The Mother agreed that in 2018, her circumstances were very different. She was suffering from a lack of self-esteem and she said she was depressed after the failure of her relationship with the Father and then with Mr K. Additionally, Mr K was domestically violent to her. When cross examined by Ms Lawrence for the ICL, the Mother said that if X lived with her, she wanted him to spend school holiday time with the Father and the Paternal Grandparents including at Christmas. The Mother said that she wanted sole parental responsibility for X if he lives with her. She said that if X continues to live in City F, she wanted joint parental responsibility with the Father and the Grandparents. She said however that this was “not working” at present. The Mother’s complaint in this regard is that she feels and certainly has felt in the past, shut out of the decision making for X.

Decision

Reasons for decision

The ICL accepted generally the views and recommendations of the family report writer and the expert witnesses.COMMENTARY AND CONCLUSIONS As referred to above in my recording of the submissions by the Father and his parents Mr and Mrs Dorsey, their view is that it would be a leap of faith to change X’s residence from City F to City D. They believe that the Mother’s parenting skills are untested, even if the evidence is that she has made significant progress since the dark days for her of 2018. The expert evidence is that X will benefit from living with his Mother and in fact, it may be a source of considerable emotional and psychological loss for him in the future if this does not occur. The updated Family Report supports X living with his Mother although it recognises that caution about an order changing residence, should be exercised. The report recommends support for X during any transition period. The Mother is seeing her daughter L regularly. She has had X and L in her household during school holiday periods when X has travelled to City D. In my view, the recommendations of the Family Report Writer which are supported by the Mother’s psychologist and by the Independent Children’s Lawyer, should be put into effect. It needs to be recognised that the Father and his parents have had a significant input into X’s life, particularly in the last three years although in reality, longer than that. The Father was generous in assisting the Mother and being available for her calls, when she separated from Mr K. The Paternal Grandparents have been very generous in their support of X since late 2018, notwithstanding that from the Mother’s point of view X should not have been in City F for as long as he has. X’s school arrangements and engagement with healthcare professionals have been arranged by the Grandparents and at their cost. Further, they have incurred considerable expense in arrangements for X to spend holiday time with his Mother. The Father and the Grandparents should continue to be very important people in X’s life. My decision in this case has been difficult. I was assisted by all of the lawyers including by the orders proposed by the ICL. Nevertheless, the Grandparents have not been incorrect in referring to some uncertainty for X with this substantial move. In all of the circumstances and on the evidence presented, I find that it is in the best interests of X that he live with his Mother, spend holiday time with his Father and Grandparents and communicate with them regularly.

Ratio Decidendi

Legal Principle Established

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