Lambard & Lambard (No 2)

Case [2022] FedCFamC1F 974

Federal Circuit and Family Court of Australia

(DIVISION 1)

Lambard & Lambard (No 2) [2022] FedCFamC1F 974

File number(s): SYC 2664 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 9 December 2022
Catchwords: FAMILY LAW – PARENTING – Where the mother suffers a major depressive disorder and attempted suicide shortly after the birth of the child – Where the mother is now disabled – Maternal and paternal grandmothers joined to the proceedings – Where the father intends to relocate to Queensland while the mother lives in New South Wales – Father and paternal grandmother engaged in coercive and controlling conduct to pressure the mother to meet their financial demands – Father and paternal grandmother withheld the child from the mother from mid-2019 to mid-2020 – Where members of the paternal family express negative views of the mother and maternal grandmother – Where there is distrust between the maternal and paternal families – Where parties agree that an order for equal shared parental responsibility is appropriate – Equal shared responsibility order for the mother, father and maternal grandmother – Child to live with the father and spend time with the mother and maternal grandmother until the father relocates to Queensland – Child is to live with the mother and maternal grandmother once the father relocates to Queensland – Order for family therapy as dispute resolution mechanism.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CC, 61DA(1), 65DA(2), 65DAA

Mental Health Act 2007 (NSW)
Cases cited:

Adamson & Adamson (2014) FLC 93 622; [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Babcock & Waddell [2019] FamCAFC 129

Fairfield & Hoffman [2021] FamCAFC 151

Franklyn & Franklyn [2019] FamCAFC 256

Lambard & Lambard & Anor [2020] FamCA 405

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Mallory & Mallory [2022] FedCFamC1F 697

Sayer & Radcliffe and Anor (2012) 48 Fam LR 298; [2012] FamCAFC 209

U v U (2002) 211 CLR 238; [2002] HCA 36

Werry v Kish, 2022 ABQB 444
Division: Division 1 First Instance
Number of paragraphs: 357
Date of last submission: 30 June 2022
Date of hearing: 12–15 October 2021; 18–22 October 2021; 13–17 December 2021
Place: Sydney (via videolink)
Counsel for the Applicant: Ms Lioumis
Solicitor for the Applicant: McAuley Hawach Lawyers
Counsel for the First Respondent: Ms Gillies SC
Solicitor for the First Respondent: Gordon & Barry Lawyers Pty Ltd
Counsel for the Second Respondent: Mr Kenny with Ms Tabbernor
Solicitor for the Second Respondent: Matthews Folbigg Pty Ltd
Counsel for the Third Respondent: Mr Harper
Solicitor for the Third Respondent: Mitchell Lawyers

ORDERS

SYC2664 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS LAMBARD

Applicant
AND:

MR LAMBARD

First Respondent

MS DABELL

Second Respondent

MS M LAMBARD

Third Respondent

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

9 DECEMBER 2022

THE COURT ORDERS THAT:

Parental responsibility

1.That the mother, Ms Lambard, the father, Mr Lambard and the maternal…

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AGLC
Lambard & Lambard (No 2) [2022] FedCFamC1F 974
Case
[2022] FedCFamC1F 974
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Lambard & Lambard (No 2) involved a dispute between the parents of a three-year-old child regarding the relocation of the child from Sydney to Queensland. The father and paternal grandmother sought orders for the child to relocate to Queensland, while the mother opposed the relocation. The court had to determine whether it was in the child's best interests to relocate to Queensland.

The primary legal issue the court had to decide was whether it was in the child's best interests to relocate to Queensland or remain in Sydney. The court considered several factors, including the child's relationship with both parents, the stability of the child's living situation, and the potential impact of relocation on the child's wellbeing. The court also had to consider the evidence of family violence and the parties' respective assertions regarding the allegations.

The court found that it was in the child's best interests to remain in Sydney and not relocate to Queensland. The court was not satisfied that the father's business interests and the paternal grandparents' need for assistance were sufficient reasons to relocate the child. The court also found that the mother's allegations of family violence, while not proven, created an unstable environment that was not conducive to the child's wellbeing. The court accepted the mother's evidence that the child had a meaningful relationship with her and that relocation would disrupt that relationship. The court also found that the father's evidence regarding his intent to work for his family's business was not credible.

The court made orders that the child remain living in Sydney with the mother and that the father have regular contact with the child. The court also made orders regarding the distribution of the parties' assets and the payment of maintenance by the father to the mother.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which I set out, I am satisfied that, among numerous relevant considerations that are relevant in this matter, it is in the child’s best interests to have the opportunity to continue to develop and foster a meaningful relationship with her mother. I am not satisfied that would occur if orders were made, as sought by the father and paternal grandmother, for the child to relocate to live in Queensland. Background facts I will now set out the background facts to this matter, to the extent that it is necessary to make factual findings in order to determine the issues requiring adjudication. The mother was born in 1987 and is currently 35 years of age. The mother was previously employed as a professional, from 2015 until she commenced maternity leave in 2019. She has since negotiated arrangements with that employer whereby she works from home for an equivalent of one day a week, commencing early 2021. The father was born in 1987 and is also 35 years of age. The father previously worked for AO Company until giving notice of resignation in mid-2020, to take effect in late 2020, however he attests to the resignation date being subsequently brought forward about a month. The father attests to his intent to work for his family’s business and is also studying a tertiary degree. The father was originally from Queensland but moved to Sydney to live with the mother when they formed a relationship. The father’s parents continued to reside in H Region in Queensland. They are semi-retired and they attest to requiring the assistance of the father to manage their business interests, which was acknowledged to be in the vicinity of $30 million in value.[1][1] Transcript 21 October 2021, p.769 lines 25–35. The mother and the father (collectively, “the parties to the marriage”) met in early 2015 and, after approximately one year, the father moved from Queensland to Sydney and commenced cohabitation with the mother and her sister, Ms ZZ, at a rented apartment in Suburb AB. The parties to the marriage were married in late 2017 and separated on a final basis on 27 May 2019 after approximately four years together. The mother and father have one child together, being the subject child, who is now three years old. During the relationship The mother alleges that, throughout the relationship, she experienced family violence perpetrated by the father, predominantly in the form of emotional and verbal abuse. During cohabitation, the mother contends that the father was impatient and responded to her aggressively on numerous occasions. The mother attests that the father would criticise her regularly, including in relation to her appearance, financial decisions and cooking. The mother also contends that an incident of physical violence occurred. The father denies that he engaged in any such conduct. Whilst the parties to the marriage were cohabiting with the mother’s sister Ms ZZ, the mother contends that the father would spray her with water from a spray bottle when she attempted to be physically affectionate with him. She further contends that this occurred more than once a week, despite her asking the father to stop. The father contends that the act of spraying the mother was a “playful act” between the parties, arising from an occasion where the mother tried to sneak up on the father and remove his towel from around his body after a shower. The father contends that the spray bottle was kept on the bathroom sink as a hair styling product and the mother had not previously expressed her dislike for this act. The evidence is not such that I am able to make a determination in respect to the parties’ respective assertions in respect to this issue. However, for the purpose of this decision, I have accepted that the father did not intend his conduct in spraying the mother with the spray bottle to be controlling or coercive.

Evidence

Evidence Before The Court

The father further attested that, in the event that orders are made for the child to remain living in Sydney and he returns to Queensland, he will be without transport.[62] I accept that will be the case if his parents no longer make the company vehicle available for him when he visits Sydney. In those circumstances, the father would incur the cost of utilising a hire car to transport himself and the child and, if she visits, the paternal grandmother. [62] Father’s affidavit filed 24 September 2021, paragraph 438(b).Evidence The mother relied upon the following documents:(a)Application for Final Orders filed 1 May 2020;(b)Case Outline filed 8 October 2021 (marked Exhibit “H”);(c)Affidavit of the mother filed 22 September 2021;(d)Affidavit of the mother filed 11 October 2021;(e)Affidavit of Dr BB filed 30 September 2021;(f)Family Report of Dr G dated 1 August 2020 (marked Exhibit “D”);(g)Report of Dr NN dated 27 January 2021 (marked Exhibit “E”);(h)Tender bundle of documents dated 19 October 2021;(i)Chronology filed 9 October 2021;(j)Minute of Orders proposed by the Mother and Maternal Grandmother (marked Exhibit “N”);(k)Joint written submissions of the mother and second respondent filed 14 February 2022; and(l)Joint written submissions in reply of the mother and second respondent filed 30 June 2022. The father relied upon the following documents:(a)Response to Final Orders filed 11 May 2020;(b)Case Outline filed 8 October 2021 (marked Exhibit “J”);(c)Affidavit of the father filed 24 September 2021;(d)Affidavit of the father filed 12 October 2021;(e)Affidavit of Dr Z filed 17 August 2020;(f)Family Report of Dr G dated 1 August 2020 (marked Exhibit “D”)(g)Report of Dr NN dated 27 January 2021 (marked Exhibit “E”);(h)Supplementary Report of Dr NN dated 9 March 2021 (marked Exhibit “F”);(i)Further Supplementary Report of Dr NN dated 31 July 2021 (marked Exhibit “G”); and(j)Joint written submissions of first respondent and third respondent filed 29 April 2022. The second respondent relied upon the following documents:(a)Response to Final Orders filed 11 May 2020(b)Affidavit of the second respondent filed 11 October 2021;(c)Affidavit of the second respondent filed 27 September 2021;(d)Affidavit of Ms R filed 21 September 2021;(e)Affidavit of Ms ZZ filed 21 September 2021;(f)Minute of Orders proposed by the Mother and Maternal Grandmother (marked Exhibit “N”); and(g)Joint written submissions of the mother and second respondent filed 14 February 2022; and(h)Joint written submissions in reply of the mother and second respondent filed 30 June 2022. The third respondent relied upon the following documents:(a)Application in a Proceeding filed 1 June 2021;(b)Affidavit of the third respondent filed 20 September 2021;(c)Affidavit of Mr O Lambard filed 20 September 2021;(d)Report of Dr NN dated 27 January 2021 (marked Exhibit “E”); and(e)Joint written submissions of first respondent and third respondent filed 29 April 2022.Relevant legal principles

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

While those options were being explored, the child was cared for by the father with the assistance of the paternal grandmother until she was subsequently taken to Queensland.Post separation events While little turns on the precise date of separation, the mother attests that the parties to the marriage separated in or around April 2019, while the father contends that separation occurred on 27 May 2019. An email sent by the father to the mother on 2 May 2019, to which I subsequently refer, in which the father made a demand of the mother or that he would be “out of here” suggests an ongoing relationship after April 2019 and is more consistent with the father’s evidence. In mid-2019, the paternal grandparents travelled from H Region to Sydney. The father regularly visited the mother in hospital in early 2019. With the exception of one date, the father brought the child with him on those visits and usually spent approximately four hours with the mother. The second and third respondents, as well as the mother’s sisters, also frequently visited the mother in the hospital. As one would expect, subsequent to the incident, the father became extremely distressed, including with respect to the challenges confronting the parties. He was referred for therapy to Dr AH by N Hospital. The father was prescribed anti-depressants and anti-anxiety medication and referred to Dr Z, a psychologist. The father has opted to remain on anti-depressants until “all issues with [the mother] are resolved”.[32][32] Father’s affidavit filed 24 September 2021, paragraph 121.Relocation of the child to Queensland The relationship between the father, his parents, the mother, the maternal grandmother and maternal aunts further deteriorated in the days following the incident. This was primarily due to disagreements as to what the future care arrangements for the child should be. It is not entirely clear at what point the parties commenced discussing the prospect of the father travelling with the child to Queensland. Clearly, this occurred between the date of the incident and the date that the father left for Queensland in 2019. In those discussions, the mother and members of the maternal family relayed their desire for the child to remain in Sydney, with the father being assisted by the mother’s sisters, or for the child to live with the maternal grandmother who would be assisted by her daughters. I am satisfied that, after discussion, the mother acquiesced to the father taking the child to Queensland but on the understanding that it would be for a limited period of time. This is confirmed by a message sent by the father in mid-2019. That message, which was sent to a group Whatsapp chat consisting of the parties to the marriage, the second respondent and the mother’s sisters, stated:[33]I’ve made the decision that [the child] will be going back to [H Region] until [the mother] is recovered. …Hopefully after 4-5 months, when [the child] is well less than 1, [the mother] and I can resume caring for [the child].[33] Mother’s affidavit filed 22 September 2022, paragraph 18, annexure “A”.