Lambard & Lambard (No 2)
[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 grandmother, Ms Dabell, have equal shared parental responsibility for the child, X, born 2019.
Live with and spend time
Until such time that the father relocates to Queensland
2.Until the father relocates to Queensland:
(a)From the date of these orders until the child turns four (4) years of age, the child shall live with the father and spend time with the mother and maternal grandmother:
(i)From 11.00 am on Sunday until 8.00 pm on Tuesday; and
(ii)From 8.00 pm on Wednesday until 8.00 pm on Thursday.
(b)From the date that the child turns four (4) years of age and thereafter, the child shall live in an equal time arrangement between the father, the mother and the maternal grandmother as follows:
(i)The child shall live with the mother and maternal grandmother:
A.Each Monday from after school or pre-school (or 11.00 am otherwise) until before school or pre-school Wednesday (or 8.00 pm otherwise); and
B.Each alternate weekend, from after school or pre-school Friday (or 11 am otherwise) until before school or pre-school Monday (or 11 am otherwise).
3.Orders 10 and following shall otherwise apply.
Once the father relocates to Queensland
4.As and from the date that the father relocates to Queensland, the child shall live with the mother and the maternal grandmother.
5.The child shall spend time with the father each alternate week from 5.00 pm on Friday to 9.00 am on Wednesday.
6.The father shall have FaceTime communication with the child on Monday, Wednesday and Saturday each week at 4.00 pm.
Block holiday time
7.Up until the child’s commencement of school, the child shall spend additional time with the father for four times per year for a block period of up to five (5) nights on the following conditions:
(a)That the father shall provide the mother 30 days’ notice of his intention to spend time;
(b)That the father shall provide the mother with travel details and accommodation details and contact details for the child;
(c)That during this time the mother shall have FaceTime with the child on Monday, Wednesday and Saturday of each week at 4 pm;
(d)A maximum of one block is to be taken in any four week period.
8.Following the child’s commencement of school, the child shall spend additional time with the father for half of all NSW gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years, with the first day of the school holiday period commencing at the conclusion of school on the last day of term.
9.Following the child’s commencement of school, the child shall spend additional time with the mother for half of all NSW gazetted school holiday periods, being the second half in odd numbered years and the first half in even numbered years, with the first day of the school holiday period commencing at the conclusion of school on the last day of term.
Orders that apply as and from the date of the orders
Special occasions
10.Notwithstanding any other order, the child shall spend time with the father:
(a)From 5.00 pm on the Saturday before Father’s Day, to before school or 10.00 am the following Monday in Sydney;
(b)On the child’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day in Sydney;
(c)On the father’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day in Sydney;
(d)During the Christmas period from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in odd numbered years and from 5.00 pm Christmas Day until 5.00 pm Boxing Day in even numbered years in Sydney; and
(e)During the Easter period, from 5.00 pm Good Friday until 12 noon Easter Sunday in even numbered years, and 12 noon Easter Sunday until 5.00 pm Easter Monday in odd numbered years in Sydney.
11.Notwithstanding any other order, the child shall spend time with the mother and maternal grandmother:
(a)From 5.00 pm on the Saturday before Mother’s Day, to before school or 10.00 am the following Monday;
(b)On the child’s birthday from 7.00 pm to before school the following day or 7.00 pm to 12 pm the following day if it is a non-school day;
(c)On the mother’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day;
(d)During the Christmas period from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in even numbered years and from 5.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years; and
(e)During the Easter period, from 5.00 pm Good Friday until 12 noon Easter Sunday in odd numbered years, and 12 noon Easter Sunday until 5.00 pm Easter Monday in even numbered years.
12.The father shall spend time with the child at all other times as agreed between the father, the mother and the maternal grandmother.
13.Changeover shall occur at day-care, pre-school or school, or Suburb YY McDonalds if outside the hours of day-care, pre-school or school.
14.The mother and maternal grandmother are permitted to utilise the maternal aunts Ms R or Ms ZZ as agents to facilitate changeover on their behalf if required.
Other orders
15.The mother shall continue to attend upon her treating psychiatrist and psychologist (or other psychiatrist or psychologist as recommended by them in the event they are unable to continue treating the mother) at such intervals as recommended, and follow all treatment recommendations.
16.In the event that the maternal grandmother is unable to be present at all times pursuant to these Orders, one of the maternal aunts, Ms R or Ms ZZ, shall be present with the mother when the child is in the maternal family’s care.
17.The father and/or paternal grandparents shall be solely responsible for the costs of any travel associated with the child spending time with him pursuant to these Orders.
18.All parties shall facilitate FaceTime between the child and parent they are not spending time with once per day during block holiday periods, or at any other time as reasonably requested by the child.
19.The mother, maternal grandmother and father shall keep each other informed of any health issues and medical treatment of the child or any of them when the child is with them.
20.The mother, maternal grandmother and father shall use their best endeavours to organise medical appointments for the child at such times to allow the parties to attend, including attend via telehealth, and authorise any treating health practitioner to release the child’s medical information to the other parties.
21.Each party is at liberty to attend all school and extra-curricular activities and events ordinarily open to parents in relation to the child and, to the extent that it is reasonably practicable, ensure that the child attends all agreed extra-curricular events during their time with the child.
22.Each party is restrained from denigrating the other parties in these proceedings or their families in the presence of the child, and shall remove the child from the presence of any third party denigrating another party or another party’s family.
23.Each party shall keep the other informed as to their residential address, email address and mobile phone number.
24.In the event that there is any difficulty with the implementation of these orders:
(a)The mother shall with fourteen (14) days of either receiving a request from the father or making a request to the father, suggest three (3) names and contact details of family therapists;
(b)The father shall choose from that list one (1) family therapist;
(c)The mother and father shall undertake any intake sessions with the family therapist;
(d)The mother and father shall attend on the family therapist as recommended by the family therapist
(e)The mother and father shall meet the costs of their own sessions with the family therapist and meet one half of the costs of any joint sessions.
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).
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lambard & Lambard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This is a particularly tragic case where, seven weeks after the child, X, was born in 2019 (“the child”), the mother, Ms Lambard (“the mother”) was involved in a catastrophic incident in which she attempted suicide while the parties were temporarily living in a suburb of Sydney. The mother sustained multiple injuries, which resulted in the mother becoming severely disabled.
Within weeks of the incident, the father, Mr Lambard (“the father”), moved with the child to live with his parents in H Region in Queensland. In the following month, the father returned to Sydney with the child and the paternal grandmother, Ms M Lambard (“the paternal grandmother” or “third respondent”) in order to visit the mother over a period of several days. After that visit they returned with the child to Queensland.
The father did not return the child to New South Wales until after interim orders were made on 26 May 2020, which required him to do so. The interim orders provide for the child to live with the father in Sydney and to spend time with the mother in the company of the maternal grandmother, Ms Dabell (“the maternal grandmother” or “second respondent”), for two days and one overnight per week.
In circumstances where both the maternal and paternal grandmothers have played a significant part in caring for the child, they have both been joined as parties to the proceedings.
By way of summary, the mother and maternal grandmother seek orders that the parents, along with the maternal grandmother, have equal shared parental responsibility for the child and for the child to live in Sydney. Whilst the father agrees to equal shared parental responsibility, he seeks sole parental responsibility for medical decisions relating to the child and orders that the child live with him in Queensland and spend time with the mother in the presence of the maternal grandmother. The paternal grandmother concurs with the father’s proposed orders.
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.
In 2018, the mother fell pregnant with the child. During her pregnancy, the mother contends that the father was critical of her appearance, poking her stomach on numerous occasions and stating words to the effect of “I’m doing a fat test” and “there’s no baby in there, that’s just fat”.[2] The mother further contends that the father showed her a photo of a friend’s wife, who had gained weight after pregnancy, and said that he would leave her if she similarly gained weight. During cross-examination, whilst acknowledging that he did show the photo to the mother, the father denies saying anything to that effect to the mother. The evidence is not such that I am able to make a determination in respect to the parties’ respective assertions about this issue. For the purpose of this decision, I have accepted that the father did not deliberately make hurtful comments to the mother about her physical appearance during her pregnancy.
[2] Mother’s affidavit filed 22 September 2021, paragraphs 60–62.
The mother also contends that, in 2018, an incident of physical violence occurred. The mother attests that the father entered a room where she was lying on the bed talking to the paternal grandmother on the phone, when she made a jest that the father’s profession “had no science behind it”. The mother attests that, in response, the father threw a ceramic dinner plate at her from his position standing at the corner of the bed. The mother contends that the plate landed on her stomach and that she was pregnant with the child at the time.[3] The father, however, contends that the mother said “I don’t know why [the father] does all this study, it’s a waste of time and effort, what good will it do. I’ve done it all before.” The father stated that he found those comments to be “disrespectful and hurtful”. The father contends that he then flipped the plate of food onto the bed and left the room, but that he did not aim for the mother. The father accepts that he should not have reacted in this way.[4] I agree with that concession by the father, but accept that he did not intend to cause injury to the mother.
[3] Mother’s affidavit filed 22 September 2021, paragraphs 52–59.
[4] Father’s affidavit filed 24 September 2021, paragraph 416(g).
Approximately one year after marriage, in 2018, the parties to the marriage purchased an apartment in Suburb C and moved in late 2018. After moving in, the parties discovered the existence of a gas issue affecting the property. The extent of the gas leak and its impact upon the mother’s health is an issue of significance in these proceedings to which I will subsequently return.
In 2019, the mother gave birth to the child at J Hospital. After three days, the mother and the child were discharged and returned to the Suburb C apartment, which did not have access to hot water at the time. This was because it had been switched off to prevent the leakage of potentially toxic gas from the hot water system. It appears that the system was, however, periodically turned back on as other residents required access to hot water. As a result of concern about exposure to the gas, the parties were advised by the New South Wales fire brigade to keep the doors and windows to the unit closed, which caused further discomfort during the hot summer period.
At this time, the paternal grandparents also stayed with the parties to the marriage for a few days. While their presence was entirely well-meaning, I am satisfied that the presence of the paternal grandparents in the unit at that time was an additional stressor for the mother. This was in circumstances where there was some tension between the respective grandmothers regarding the nature of the assistance that they were providing, and also as a result of the maternal grandmother’s suggestions that the new parents may have been better off temporarily moving out of the unit until the gas issue was resolved. The paternal grandmother regarded the suggestions, to that effect, to be unhelpful interference by the maternal grandmother.
The father attests to taking the maximum amount of paternity leave for a non-primary carer, being four weeks, however the mother contends that the father only took one to two weeks of paternity leave and spent this time studying for his degree.[5] It has been unnecessary to resolve this factual controversy.
[5] Father’s affidavit filed 24 September 2021, paragraph 39; Mother’s affidavit filed 22 September 2022, paragraph 108.
The father contends that the mother’s mental health deteriorated from 2018 onwards, displaying “manic, obsessive and depressive behaviour”.[6] The mother attests to experiencing panic attacks and anxiety, and that her “mental health was compromised in the apartment”[7] upon returning home from the hospital after giving birth to the child in the circumstances that I have outlined. The nature of the mother’s mental health challenges will subsequently be set out in greater detail.
[6] Father’s affidavit filed 24 September 2021, paragraph 11.
[7] Mother’s affidavit filed 22 September 2021, paragraph 107.
Gas issue
As will become apparent, the issue as to the extent of noxious gas present in the vicinity of the unit that was the parties’ matrimonial home is a significant issue in these proceedings. This is because the mother contends that, in the context of a number of other stresses that were occurring in her life including those associated with her pregnancy and the child’s subsequent birth, the gas issue was the final straw that resulted in her having an acute mental health episode resulting in attempted suicide. Comparatively, the father and paternal grandmother contend that the mother has had a history of mental illness, with the mother’s reaction to the gas issue being a reflection of that underlying mental health vulnerability. The mother’s mental health challenges, together with her physical limitations, they contend, impact upon the mother’s parenting capacity.
As previously noted, after moving into the Suburb C apartment in late 2018, the parties discovered that the balcony of the apartment was impacted by fumes emanating from a communal gas hot water system located nearby. The mother attests to suffering dizzy spells in the apartment and witnessing the father suffer from disorientation and confusion.
The parties had access to gas monitoring equipment which they used to test the apartment for gas and detected high carbon monoxide and other toxic chemical emissions emanating from the nearby communal gas hot water system.
In her evidence, the mother emphasised the seriousness of the gas issue while the father’s evidence played down its significance. Nonetheless, during cross-examination, the father acknowledged that this gas issue was critical.[8] The parties to the marriage then contacted the property’s strata manager and the Department of Fair Trading, engaging in negotiations to resolve the issue.
[8] Transcript 19 October 2021, p.519 lines 21–23.
I am satisfied that the representations that the father made to the Department of Fair Trading, rather than the evidence he presented in these proceedings, most accurately described the extent of the gas leak issue. I am satisfied that, on the basis of those representations, it was indeed a serious issue and one that was of great concern to the mother and, indeed, the father at the time.
In particular the mother, who was pregnant at the time, became increasingly anxious about living in the apartment whilst the gas issue remained unresolved. This was due, in substantial part, to her concerns about the potential harm she believed it posed to the parties’ unborn child. As a result of this anxiety, the mother engaged more regularly with her psychologist Dr K. She had commenced consulting with Dr K in 2016 at the father’s suggestion to help the mother deal with the passing of her father. Dr K was previously engaged as the father’s psychologist and the parties to the marriage attended joint sessions with Dr K during their relationship.
As a result of the gas issue, the mother temporarily moved to the second respondent’s home in late 2018. The father was initially approving of this occurring, however subsequently took objection to the mother moving out of the matrimonial home as a result of her concerns about the gas issue.
In late 2018, the father attests to contacting the fire brigade to have the entire apartment complex inspected for gas fumes, resulting in the Department of Fair Trading determining that the gas flue system was non-compliant. The fire brigade subsequently issued a report to the residents, advising residents to “close all doors/windows facing north until the issue can be resolved”.[9] By late 2018, the father contends that the flue system affecting the apartment was replaced with a compliant flue system that jettisoned exhaust fumes away from the apartment and, as the Department of Fair Trading was satisfied with such compliance, the gas hot water system resumed operation. The evidence satisfies me, however, that problems remained with the gas hot water system. In that respect, the father acknowledges that “minor and infrequent gas fumes”[10] were detected in the property in early 2019. These fumes were detected by a gas meter hired by the parties to the marriage. Footage of the results of the tests using that equipment was shown in the proceedings and links to that footage were marked Exhibit “R” in the proceedings. The footage records the father indicating his concerns about the emission of toxic gases, some of which he identified as they were being recorded.
[9] Father’s affidavit filed 24 September 2021, paragraph 31(b).
[10] Father’s affidavit filed 24 September 2021, paragraph 64.
As a result of ongoing problems with the emission of gases from the hot water system, in early 2019, the strata company offered the parties to the marriage temporary paid accommodation in Suburb AC whilst the gas issue was being resolved.
About a month later, the Department of Fair Trading ordered the shutdown of the gas hot water systems for the building until the strata manager resolved the issue. The temporary accommodation provided by the strata manager was not extended after this time because the strata company formed the view that the gas issues were not a concern whilst the hot water systems were shut off. Consequently, the parties to the marriage returned to the Suburb C apartment. As referred to above, the mother subsequently gave birth to the subject child the next day.
The mother’s anxiety concerning the gas issue persisted. The father contends that, as a result of that anxiety, the mother requested a number of measures be taken, including that her placenta be tested for carbon monoxide testing prior to the child’s birth and that only one of the three water systems remain operational whilst she resided in the Suburb C apartment. However, the mother contends that the father initiated the placenta testing “to have evidence to be able to sue someone”.[11] It is unnecessary to resolve the factual controversy as to which of the parties wished to have the placenta tested. It is one aspect of the evidence which, considered in totality, satisfies me that both parties were, at this time, very concerned about the gas issue. This concern included the impact it was having on the comfortable enjoyment of their property and, from the mother’s perspective, real concern she held regarding the impact of the gas on the parties’ unborn and subsequently newly born infant.
[11] Mother’s affidavit filed 11 October 2021, paragraph 22.
The father contends that, once the mother was discharged from the hospital and returned to Suburb C with the child, she protested that she could still detect a ‘detergent’ type smell on the balcony. This was despite the hot water system of the apartment building being shut off at the time. The mother acknowledges that she had fixated on this gas issue “as part of [her] perinatal mental health difficulties”.[12] On instructions, counsel for the mother acknowledged that the mother’s fixation on the potential presence of noxious fumes at this time was “overvalued” but nonetheless submitted that the mother’s concerns had a basis in reality. I accept that submission as an accurate summary of the mother’s position.
[12] Mother’s affidavit filed 11 October 2021, paragraph 22.
The significance of the release of fumes from the gas system is evidenced by the fact that in late 2019, the father commenced legal proceedings against the strata company of the Suburb C apartment, seeking to have the gas issue rectified. The court ordered that rectification work was to be carried out, which was subsequently undertaken and completed at a cost of nearly $750,000. Due to ongoing concerns about the gas issue, in mid-2019, the father was able to obtain further temporary accommodation at an apartment in Suburb Q which was paid for by the strata company. It is there that the mother attempted suicide in circumstances to which I will subsequently refer.
Involvement of extended family
The mother attests to experiencing verbal abuse perpetrated by members of the extended paternal family. At paragraph 68 of her affidavit filed 22 September 2021, the mother details a number of disparaging statements allegedly made to her by the paternal grandfather, including: “You don’t have a thigh gap, you should watch your weight” and “you are over educated. Big mistake for a woman, how can you be a housewife?” In circumstances where I found the mother to be a truthful witness and in circumstances where I am satisfied that the paternal grandfather sent inappropriate emails to the mother, I accept the mother’s evidence regarding those disparaging comments.
In making that finding I refer, by way of example, to emails sent by the paternal grandfather to the mother as set out at pages 246 and following of the mother’s tender bundle (marked Exhibit “Q”). There are a number of similar emails, including one which features an image of a female body in lingerie and text set out on page 248 which reads “Vaginas are like the weather. If its wet, then its time to go inside.” The paternal grandfather acknowledged sending that email to the mother, stating that he would not have sent it to his daughter nor his son, “but to [the mother] I would.”[13] When pressed by counsel for the mother as to why he differentiated between the mother and his own daughter and son, the paternal grandfather stated “she would make a brickie’s labourer blush.”[14] By way of further explanation, the paternal grandfather said “she has been around the block a few times”,[15] in circumstances where the necessary implication was that the grandfather was referring to his perception of the number of the mother’s previous sexual relationships.
[13] Transcript 15 December 2021, p.14 line 45 to p.15 line 3.
[14] Transcript 15 December 2021, p.15 line 5.
[15] Transcript 15 December 2021, p.15 line 9.
The paternal grandfather’s disrespectful attitude towards the mother is further evidenced by his agreement with the proposition advanced during cross-examination by counsel for the mother that he remains of the view that his son, the father, should not have married the mother. The paternal grandfather’s agreement was coupled with a statement that the father would have been better off “[marrying] the checkout chick down the road.”[16] When pressed about the appropriateness of that comment, the paternal grandfather confirmed his position, as recorded in the following exchange:
[16] Transcript 15 December 2021, p.16 line 20.
[COUNSEL FOR THE MOTHER]: You just made a comment your son shouldn’t have married [the mother]. He would have been better off marrying the girl down the road. You appreciate what you just said?
[PATERNAL GRANDFATHER]: Yes.
[COUNSEL FOR THE MOTHER]: And do you care that [the mother] heard you say that?
[PATERNAL GRANDFATHER]: No. No. She – she was fraternising with other people behind his back.
(Transcript 15 December 2021, p.16 lines 30–35)
The disrespectful and disparaging attitude that the paternal grandfather showed towards the mother is, for reasons which I explain, a matter that I have taken into consideration in the exercise of my discretion to not make orders as sought by the father permitting him to relocate with the child to Queensland. This is in circumstances where it is the evidence of the father that he would, at least initially, be living with the paternal grandparents.
In their evidence, the father and paternal grandmother referred to the mother’s ongoing wish to call the child another name, during the period she was hospitalised and following the incident, as an indication of the mother’s ongoing ill-health. Comparatively, the mother contends that the parties agreed to name the child that name before the child’s birth, and that the paternal grandparents expressed their dislike for the name on numerous occasions. The mother contends that the paternal grandfather said words to the effect of “you’re a fucking idiot for choosing that name” and “[That] is a bloody stupid name”.[17] Due to this pressure, the mother contends, the child was subsequently named X. The father contends, however, that the child’s name was not decided until after she was born, and that the paternal grandfather raised the potential difficulty the child would initially have with spelling a name such as the one suggested by the mother. The father further contends that the name X was chosen by the mother and her family after discussions in early 2019. The evidence is not such that I am able to determine whether there had been any agreement between the parties to name the child according to the mother’s wishes or whether it was changed as result of inappropriate pressure from either the father and/or the paternal grandparents. Accordingly, I have not had regard to the parties’ differing accounts in respect to this issue as being of relevance to my decision.
[17] Mother’s affidavit filed 22 September 2021, paragraph 101.
It is apparent that there is animosity between members of the paternal and maternal families. In relation to the second respondent, the paternal grandfather stated that she was not able to look after herself, stating “if I was her husband [...] I think I would have committed suicide”.[18] Despite being given an opportunity to withdraw his comment, the paternal grandfather did not do so.
[18] Transcript 15 December 2021, p.18 line 40 to p.19 line 3.
Events and incident in 2019
As previously noted, the child was born in 2019. After the birth of the child, the parties returned to live in the Suburb C unit. In the context of the mother being concerned about the ongoing gas issue and the other stresses in her life, in early 2019, the mother sent a text message to her psychologist, Dr K, in which she stated “I want to end my life [Doctor] I want to leave the baby with [the father].”[19]
[19] Father’s affidavit filed 24 September 2021, paragraph 76.
In early 2019, the mother attests to having severe panic attacks and contends that she informed the father of her intention to stay with the second respondent as she needed help with the child, was bleeding heavily and required access to hot water. The mother further states that, despite her wishes in that respect, the father called an ambulance for her and she reluctantly acquiesced. After meeting with a psychiatrist and doctors at L Hospital, the mother attests to expressing her desire to go home with the maternal grandmother to have relief from the gas issue and to obtain assistance with the baby. This occurred but, as I will set out, was a source of conflict with the father.
The records produced by L Hospital include notes made by Dr AD, which read as follows:
A plan was formulated with [the mother] and key supports to have a period at her mother’s (likely to be a week) to have extra support, break from her unit, time to sleep/access to hot water, and that she could then make a plan with her family from there regarding where to stay longer term.
(Joint tender bundle marked Exhibit “B”, p.48)
The father acknowledged being advised by the on call psychiatrist, Dr AE, of that proposed plan of action,[20] but it is apparent that he nonetheless objected to the mother going home with the maternal grandmother. As the father left the hospital on that day, he sent a text to the maternal grandmother which read “you’ve got the car keys, you’ve got [the mother], and you’ve got the baby. Now leave me alone. Stop aggravating my life”.[21]
[20] Transcript 20 October 2021, p.587.
[21] Transcript 20 October 2021, p.586 lines 29–34.
The father acknowledges that, after sending that message, he turned off his phone for a period of three days.[22] The father acknowledged that he took that course of action despite appreciating that the mother was “in complete crisis”.[23] I will subsequently set out how the strategy of blocking the mother’s calls was a tool the father used with a view to controlling the mother.
[22] Transcript 20 October 2021, p.589 lines 23–28.
[23] Transcript 20 October 2021, p.596 lines 6–7.
The day after attending the hospital, the mother sent the father an email stating that she felt “less panicky” being away from the Suburb C apartment and that she wanted to return as soon as possible for their family. The father responded that the mother’s current living situation with the second respondent was as a result of a plan orchestrated by the second respondent and Ms AF, the mother’s friend, to separate the father from the child.
The mother attests that as result of the father’s disengagement with her by turning off his telephone, her mental health further deteriorated to the point where, in the days following her discharge from L Hospital whilst on a phone call to her other sister Ms R, who then resided overseas, the mother expressed suicidal ideation.
In early 2019, the second respondent, with whom the mother was staying at the time, called an ambulance for the mother.[24] This was in circumstances where the mother’s thoughts of harming herself were intensifying. After the mother’s mental health was assessed, she was admitted to the Mental Health Unit of M Hospital. The mother was subsequently diagnosed with postpartum depression and placed on anti-anxiety medication, which the mother attests began to stabilise her mental health.[25] During this time, the child stayed with the mother during the day while the father, the second respondent and the mother’s sister Ms R, who had travelled to Sydney, cared for the child at night.
[24] Second respondent’s affidavit filed 27 September 2021, paragraph 174.
[25] Mother’s affidavit filed 22 September 2021, paragraph 148.
After around three days at M Hospital, the mother was transferred to N Hospital in Suburb AG, which is a private facility. The mother’s sister Ms R met the cost of the mother’s admission to that facility.
About a week later, temporary accommodation was arranged for the parties to move from the Suburb C unit to an apartment in Suburb Q, being P Street, Suburb Q (“the Suburb Q apartment”).
The next day, the father returned to his employment in Sydney.
A few weeks after being transferred to the N Hospital, the mother was given day leave to spend outside the hospital, which she took in mid-2019. On this day, the father took the mother to the Suburb Q apartment. The mother attests that, while there, she “felt dread when looking at the apartment […]” and stated to the father “I just want to kill myself”.[26] The father contends that although he noticed the mother’s anxiety and was concerned, he did not raise this concern with her, nor did the mother make any comment about dying. The mother also contends that the father stated to her “I wouldn’t have married you if I knew you were going to get post-natal depression.”[27] The father does not agree with the precise account of the conversation as provided by the mother. However, the father acknowledges that the mother asked a question to the effect of “would you have married me if you knew I was going to be like this?” to which he replied “probably not”.[28]
[26] Mother’s affidavit filed 22 September 2021, paragraphs 161–162.
[27] Mother’s affidavit filed 22 September 2021, paragraph 163.
[28] Father’s affidavit filed 24 September 2021, paragraph 102.
During the course of these proceedings, the father expressed regret at having made that statement to the mother in circumstances where she was in a condition of mental health vulnerability.[29] Nevertheless, even accepting the version of events as stated by the father, his conduct showed a lack of empathy for the mother who, evidently, was struggling with her mental health and, at the time, had the responsibility of caring for the parties’ newborn child. I will subsequently explain that the father’s displays of lack of empathy towards the mother became more significant in the period subsequent to the father taking the child to Queensland after the mother’s suicide attempt. I will also explain why, in my opinion, that lack of empathy was displayed towards the child in circumstances where the father had been advised that removing the child to Queensland was not in the interests of neither the child nor the mother.
[29] Transcript 20 October 2021, p.602 lines 23–39.
A further issue of relevance is the conduct of the father and the paternal family in using the mother’s desire to receive photos of the child and opportunities to have electronic communication with the child as a means of coercing and controlling her in respect to associated matters, including financial issues. This also showed a lack of empathy towards the interests of not only the mother but also the child, in circumstances where the father and paternal grandmother had been advised of the importance of an infant child bonding with her mother.
Following the conversation at the Suburb Q apartment between the parties to the marriage, the father notified N Hospital that he had concerns that the mother would self-harm.[30]
[30] Father’s affidavit filed 24 September 2021, paragraph 105.
In mid-2019, the mother called the father and asked about gaining access to the Suburb Q apartment, the keys to which were left in a locked letterbox. Whilst the mother contends the father provided her with the letterbox code, the father contends that the mother already knew the code and called him to confirm the code. I do not, in these proceedings, purport to identify the causative factors that lead to the mother’s suicide attempt and, accordingly, it is unnecessary for me to further explore the appropriateness of the father’s conduct on that day.
Also on that day, the mother requested a nurse at N Hospital to mind the child, stating that she intended to get some yoghurt. That request was acceded to by the nurse who opened the security door for the mother. The mother then travelled to the Suburb Q apartment, where she attempted suicide. The mother survived this attempt but sustained multiple catastrophic injuries, which resulted in severe disability. She requires a wheelchair for mobility.[31]
[31] Mother’s affidavit filed 22 September 2021, paragraph 17; Joint tender bundle marked Exhibit “B”, p.235.
Following the incident, the mother was admitted to the Intensive Care Unit of KK Hospital and scheduled under the Mental Health Act 2007 (NSW). The mother was engaged with a psychiatrist and psychologist and subsequently transferred to another ward. The mother remained in hospital for nearly 12 months.
A disagreement arose between the maternal and paternal families in respect to caring for the child and supporting the mother during her recovery. It is clear that a range of options were considered, including the child being cared for by the maternal grandmother with the assistance of her aunt on the one hand and, on the other, for the child to remain in the care of the father assisted by her paternal grandmother. Other options included the possibility of the father engaging home care for the child when he was at work.
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”.
In responding to questions from counsel for the mother, the father acknowledged that he represented to the mother that he would return with the child to Sydney to visit the mother every three or four weeks and that his mother, the paternal grandmother, was aware of that understanding.[34] This is confirmed in statements that the father made to the mother’s treating health professionals, to which I will subsequently refer.
[34] Transcript 20 October 2021, p.623 line 20 to p.624 line 6.
In mid-2019, the father and the third respondent flew back to H Region with the child. The father then relocated the child to H Region to be left in the care of the paternal grandparents and subsequently returned to Sydney alone a few days later so that he could attend work.[35]
[35] Father’s affidavit filed 24 September 2021, paragraph 125(b); Mother’s affidavit filed 22 September 2021, paragraph 197.
It is common ground that, in the period subsequent to the child being taken to Queensland and the interim orders made on 26 May 2020, the father only brought the child to Sydney on one occasion, being in mid-2019. During this period, the father would bring the child to the hospital for about one to two hours each day.[36]
[36] Mother’s affidavit filed 22 September 2021, paragraph 202.
The child lived in Queensland with the paternal grandparents and, on those occasions where the father was not working in Sydney, with the father. Relevantly, the child lived in Queensland from the age of nine weeks until she was 15 months old. She has been living in Sydney since the May 2020 orders were made. I note that, in quantitative terms, the child has been living in Sydney for the majority of her life.
Communication between the parties to the marriage and members of their extended families in the period subsequent to the child being taken to Queensland
It is clear that the tension between the parties to the marriage and, indeed, the maternal and paternal families intensified in the period following the child being taken to Queensland.
In mid-2019, the father sent electronic messages to the mother,[37] which included:
…your mum is the dumbest cottage lady bitch I have [ever] come across
…take control of your life and responsibilities and tell your mum to get fucked or I am out of here
[37] Mother’s affidavit filed 22 September 2021, paragraph 200, Annexure “J”.
Also on that day, the father sent electronic messages in a group chat including the mother and one of the mother’s sisters, which included:
…your mum is a dumb interfering bitch
Well get fucked yourself
About a month later, the father sent the mother an electronic message stating, “I am moving to [H Region] to care for [the child] as her dad. When you are at [sic] of hospital and we see what your situation is, we can reassess.”[38] In response to the mother’s concerns regarding spending time with the child, the father stated that he would attempt to facilitate ongoing contact and that “[the mother, herself] can make every attempt to constantly see her. Obviously as she gets old that will all get easier”.[39]
[38] Mother’s affidavit filed 22 September 2021, paragraph 214.
[39] Mother’s affidavit filed 22 September 2021, paragraph 214.
By electronic communication, the mother asked when she would be able to see the child again. The father responded stating, “There is no future plan and I have no appetite into putting the effort into working out another plan right now”.[40]
[40] Mother’s affidavit filed 22 September 2021, paragraph 216.
In mid-2019, the father sent the mother an email wherein he stated:[41]
Dear [the mother],
I had been trying to arrange for [the child] to visit you from the 8 - 12 July.
However, recent events have prompted me to seek legal advice.
I have been advised that it is my legal obligation to Act in the best interest of [the child].
Furthermore, the advice I have received is that it is not in [the child’s] best interest to be going back to Sydney, the visit is unlikely to benefit [the child] and therefore it is not in [the child’s] best interest.
Whilst I was hoping to balance out acting in [the child’s] best interest with compassion for your circumstance, I must now act in [the child’s] best interest and this means [the child] will no longer be visiting Sydney…
(As per the original)
[41] Mother’s affidavit filed 22 September 2021, paragraph 220, Annexure “O”.
There was a further exchange of electronic messages between the parties to the marriage a few days later which, relevantly, included the following:[42]
The mother: When will I get to see [the child] [Mr Lambard]?
The father: That’s a question you have to answer for yourself [Ms Lambard]… [The child] will not be travelling… it’s up to you to get yourself better, out of hospital and in a position to see [the child]…
The mother: I’m her mum. I need to see our daughter
The father: Well you are going to have to figure out how you are going to do that [Ms Lambard]. I hope you can make arrangements to get to [H Region] to see our daughter as well.
The mother: I’m in hospital [Mr Lambard]
The father: I’d suggest you get out of hospital sooner rather than later then.
[42] Mother’s affidavit filed 22 September 2021, paragraph 225, Annexure “Q”.
In mid-2019, the father sent an email to the second respondent, wherein he stated:[43]
…I don’t believe it is in [the child’s] best interest to meet with her birth mother who is mentally unfit, deceitful, suicidal & filled with guilt.
[43] Mother’s affidavit filed 22 September 2021, paragraph 227, Annexure “R”.
In late 2019, in response to the mother’s request as to when the father would be able to bring the child to visit her in Sydney, the father responded that he was not prepared to bring the child to Sydney, stating “I will simply not do anything that harms the development and welfare of our little girl”.[44]
[44] Mother’s affidavit filed 22 September 2021, paragraph 234.
The next day, the father sent the mother an email which included the following:[45]
I already engaged a lawyer for legal advice regarding [the child], the windup of our marriage and the unit.
My proposals below are in accordance with this legal advice.
…
[The child]
Legal advice I have received has informed me that as the Father and [the child’s] primary carer, I am legally responsible for [the child’s] welfare and best interests.
By relentlessly requesting that I bring [the child] to see you, you are that I breach my duty of care and responsibility to [the child], I simply will not do this.
(As per the original)
[45] Mother’s affidavit filed 22 September 2021, Annexure “T”.
During the course of the proceedings, it was agreed that as result of reference to that legal advice, the father had waived legal professional privilege. A file note dated 27 June 2019, made by the solicitor who provided the legal advice, was tendered in the proceedings as Exhibit “W” which, with redactions, relevantly includes the following:
[The father] says that he definitely separated approximately a month ago and had advised [the mother] accordingly. He says that [the mother] is psychotic and the family has a history of mental illness but the unit fast tracked some things and she had the suicide attempt. She has been advised by 2 lawyers that she has a significant action against both hospitals. One was [N Hospital], the other one was [J Hospital]. He advises that [the mother] is still in hospital, won’t be discharged for months and to date they have been taking [the child] to see her every fortnight but that has caused significant distress to everybody including [the paternal grandmother] and [the mother] because she is unable to have any meaningful time with the child. [The child] is now […] months.
We talked about the need for [the child] to be in a stable environment and in the end they were reinforced in their view that [the child] would remain in QLD and at this stage they won’t have regular 2 week visits to [the mother].
[The mother] could then recover - when she does recover, issues as to [the child’s] care would have to be resolved including [the mother] spending some time with her.
[The father] has spoken to various social workers who confirmed that the arrangement is satisfactory. We have previously talked about a section 66 I certificate but having had those discussions, [the father] elected that he will just leave matters as they are and if [the mother] wanted to commence proceedings, she would have to start off with a section 66 I certificate and then they could go in to a round of counselling or otherwise.
I think they were happy with the conference but clearly [the child] was going to reside in QLD, [the paternal grandmother] was going to be her major carer, [the father] was now going to move to QLD to facilitate that and obtain support for [the child] and himself and the family issues in NSW would have to resolve themselves in due course.
(Emphasis added)
By electronic message sent in late 2019, the mother requested that the father provide a photo of the child. The father replied to that message saying “She’s not a toy that presents for pretty photos all day… I’m over it [Ms Lambard], just get a court order specifying what you want and we’ll go from there”.[46]
[46] Mother’s affidavit filed 22 September 2021, paragraph 239, Annexure “U”.
In late 2019, the father sent a message to the mother saying, “In the future, I’ll be sending you photos and videos on Wednesday and Sunday nights, no need for you to ask for them”.[47]
[47] Mother’s affidavit filed 22 September 2021, paragraph 243.
It was agreed that, despite that message, about a week later, the father ceased sending photos of the child to the mother.
The mother persisted with her request for the father to provide her with a photo of the child and in response, the father sent the following message:[48]
No, you’ve done nothing to move our situation forward aside from asking endless questions without any action. In effect you are stealing from [the child] and I by racking up unnecessary expenses, depleting my time and my families time in having to chase you for not meeting your responsibilities and commitments. Meet your responsibilities and commitments which is what we need and ill [sic] give you what you want
[48] Mother’s affidavit filed 22 September 2021, paragraph 255.
It was acknowledged, during the course of the proceedings, that the responsibilities which it was contended the mother was not meeting were in respect to the mother paying a share of the interest payable to the paternal grandmother, who had financed the parties’ purchase of the Suburb C unit, as well as outgoings in respect to the unit.
In late 2019, in response to the mother’s request for the father to bring the child to Sydney to visit her, the father responded with messages that included the following statements:[49]
The onus is on [the mother] to recover and visit her daughter
…
Do you want [the child] to know her mum? If so, make it happen…
[49] Mother’s affidavit filed 22 September 2021, paragraph 256, Annexure “Y”.
It was accepted that, during this time, the mother was hospitalised and undergoing rehabilitation in respect to her catastrophic injuries and mental health. The mother was physically incapable of visiting her daughter.
The mother nonetheless pressed her request for the father to provide her with a photo of the child. In response to that further request, the father responded by electronic message tying his preparedness to provide such photographs to the mother complying with what he stated were her financial obligations. That text message included the following statements:[50]
… You need to respect and adhere to all your obligations and responsibilities.
It’s my understanding that my parents are still awaiting payment for your share of our interest costs and I am awaiting payment to the expenses and I have paid on your behalf.
[50] Mother’s affidavit filed 22 September 2021, paragraph 257, Annexure “Y”
On 6 November 2019, the legal practitioners for the mother sent an email to the father in which they requested that the father advise them of his proposed interim parenting arrangements, which they requested should include particulars of:
1.time with [the child] while [the mother] is a patient at [T Hospital]; and
2. time with [the child] for when [the mother] is discharged from [T Hospital].
By email dated 10 November 2019,[51] the father provided a lengthy response to the email from the mother’s solicitors dated 6 November 2019, which included the father’s opinion as to the nature of the mother’s mental illness, stating that:
·the mother has suffered lifelong mental consequences as a result of having been exposed to domestic violence when she was a child;
·the mother’s mental illness is “as a result of her upbringing and someone should be protecting her from further pressure from her mother’s irrational demands and her mother’s inability to resolve any problem” (Emphasis in original); and
·the mother had an extra marital affair “during her pregnancy and continuing”.
[51] Mother’s affidavit filed 22 September 2021, paragraph 267, Annexure “AA”
In that email, under the subheading ‘interim parenting plan’, the father proposed following arrangements:
1.Parental Responsibility
I will make decisions for [the child] until such time that [the mother] is medically and practically capable of making decisions for herself, and [the child], without the interference of [the maternal grandmother].
2.Living Arrangements
[The child] will reside at [U Street, Suburb V] QLD ("[the child’s] Home") and be cared for by myself and [the paternal grandparents] whilst I am at work.
3.Visitation
[The mother] is welcome to visit [the child] at [the child’s] Home with professional supervision or utilise digital resources, once a week, to maintain a relationship with [the child].
4.Visitation with other relatives
[The mother’s] family is welcome to visit [the child] at [the child’s] Home with professional supervision.
5.Maintenance of the child
I will continue to work and financially provide for [the child], which can be reviewed if the situation changes with [the mother’s] income or compensation for lost income is received by [the mother] (retrospectively or future).
6.Parental Development
[The mother] is to enrol in and complete the [AI Organisation] parenting program by 1 August 2020.
7.Changes to this plan
Anytime relevant information arises that will result in a benefit to [the child].
(Citations omitted)
In that same email, the father was also critical of the mother in failing to take every opportunity that he contended had been available to her to communicate with the child, stating:
Since April, [the mother] was meant to make daily FaceTime calls with [the child] (her mental health team encouraged [the mother] to make these calls as well), [the mother] has tried just once; and
I created a "[The child] Songs" and "[the child]" [electronic messaging] group to share photos and videos of [the child], and for [the mother] to record nursey [sic] rhyme videos that we could stream to a TV:
•[The mother] recorded video(s) toward the end of April 2019 only;
•[The mother] removed herself from the "[the child]" group on the 26/8/2019.
Despite that criticism, it is readily apparent that the mother was persisting with her attempts to obtain photographs of the child and to communicate with the child, at least by electronic means. Indeed, the tone of messages she sent to the father reflect some desperation in respect to her desire for that to occur.
Additionally, during the course of these proceedings and in their written submissions, the father and the paternal grandmother were critical of the maternal grandmother and the child’s maternal aunts for failing to visit the child when she was in Queensland. In the circumstances of this case, including the express concern of the maternal grandmother as to the impact such a visit may have on the mother when she herself was unable to travel to Queensland and in the context of derogatory comments made of the maternal grandmother by the father, I draw no adverse inference against either the maternal grandmother or the maternal aunts for not attempting to visit the child when she was in Queensland. Specifically, it is not an indication of their lack of love and commitment to the child or their preparedness to assist the mother in caring for the child. In that context I note, by way of example, in the email sent on 10 November 2019, the father also asserted that the maternal grandmother “is a common denominator in mental illness within the [maternal] family”.
Despite reservations explained in the communication of 10 November 2019, a few days later the father facilitated a FaceTime call between the child and the mother.[52]
[52] Father’s affidavit filed 24 September 2021, paragraph 223.
On 10 December 2019, the father’s solicitors sent correspondence to the mother’s solicitors which included the following:[53]
We refer to the above matter and to recent developments in relation to same.
Parenting
Our client instructs that your client and her mother '[the maternal grandmother]' have continued to demonstrate derogatory and unacceptable behaviour toward [the paternal grandparents] and as a result they are no longer able to communicate with either [the mother] nor [the maternal grandmother] in order to facilitate FaceTime between your client and [the child].
We note that our client is still committed to facilitating contact between [the mother] and [the child] despite your clients continued derogatory behaviour toward our client and his family and as such will continue to make [the child] available to FaceTime with [the mother] three time each week.
Financial
We are instructed that your client continues to refuse to comply with all reasonable requests from our client to meet her obligations in regard to the parties' finances and in particular, her share of the outstanding debt associated with the costs pertaining to the parties' former matrimonial home.
In consideration of the above and the impact same is having on the parties' net property pool can you please advise as to whether your client is prepared to meet her share of the aforementioned costs associated with the parties' former matrimonial home?
We note that your client's refusal to meet her above mentioned obligations negatively impacts on both parties financial position and that any outstanding monies owed by your client in relation to the former matrimonial home will be accounted for in her portion of the parties property settlement.
[53] Mother’s affidavit filed 22 September 2021, paragraph 298, Annexure “HH”.
In late 2019, at approximately 1.00 pm, the mother sent a text message to the father in which she said:
Let me know what you want me to do so that you will allow me to spend time with my own daughter?
The next day, at approximately 10.30 pm, the father responded:
There is nothing you can do [Ms Lambard] aside from moving to a care/rehabilitation centre [in H Region] or Brisbane.
If you want better relations between yourself and [the child’s] carers, I suggest you respond to my solicitors letter regarding our outstanding expenses and rental compensation we are owed.
By text messages sent in early 2020, the mother again pressed her request for the father to bring the child to Sydney to visit her. In response, the father stated:
As I've advised you many times [the mother], I've received legal advice that I can not subject [the child] to such travel until she is much older as it is not considered to be [the child’s] best interest to subject her to the stress of travel and break in her routine.
If it was in [the child’s] best interest you would have been able to obtain a court order by now forcing me to do so but you haven't.
I simply can't do what you are asking me to do and that is not going to change for quite sometime.
It's up to you to make arrangements for you to visit your daughter.
(Emphasis added)
It is to be noted that the file note made by the solicitor for the father and paternal grandmother, to which I have earlier referred, refers to a temporary suspension of the two-weekly visits between the child and the mother. Nowhere in that file note is there a reference to advice that the child should not travel to visit the mother “until she is much older.”
There was a further exchange of text messages between the mother and the father on the same day in early 2020, in which the mother requested advice from the father as to when he would be able to bring the child to visit her in Sydney, to which the father responded “probably in 2024.”
In early 2020, the father applied for a Protection Order against the mother in response to her persistence in requesting that the father provide her with photographs of the child and for the father to travel with the child to visit her in Sydney.
About a fortnight later, the father’s Protection Order application was struck out at the first return date.
One week after the father’s application was struck out, the father sent an email to the mother in which he said:[54]
[54] Mother’s affidavit filed 22 September 2021, paragraph 319, Annexure “NN”.
I am writing to inform you that I am withdrawing the proposed parenting plan and my offer to resolve outstanding expenses and payment of rental compensation.
Over the last several months, myself and my solicitor have gone to great lengths to propose:
1.A practical interim parenting plan that ensured regular contact between yourself and [the child]; and
2.A resolution to outstanding expenses we owe and rental compensation we are entitled to receive.
As previously mentioned to you, I was open to your share of the rental compensation being paid directly to you, provided you acknowledged and would pay your share of the expenses.
Despite this, myself or my solicitor have not received any communication from you or your solicitor despite our numerous approaches.
I am not even sure if [your solicitor] is still representing you as it seems bizarre for a solicitor to not respond to reasonable and open approaches.
Instead, what myself and my parents did receive from you was a barrage of WhatsApp messages, missed calls, email and SMS messages which were nearly all unrelated to the above.
I felt abused, it defiantly [sic] affected me and I am surprised my domestic violence order was struck out, but that's the way it goes.
Forward all future correspondence direct to me.
Considering you were obviously not satisfied with my proposed parenting plan and offers to resolve issues relating to our unit, I'll await your proposals instead.
(Emphasis in original)
Current arrangements
In early 2020, the mother was discharged from rehabilitation.
By way of Initiating Application filed on 1 May 2020, the mother sought interim orders which included for the child to be returned to live in Sydney and for arrangements for the child to spend time with her in the presence of the maternal grandmother. That application was heard and subsequently determined by me, with judgment being delivered on 26 May 2020: Lambard & Lambard & Anor [2020] FamCA 405. Relevantly, the interim orders provided for the child to return to live in Sydney with the father and for the child to spend time with the mother:
·Each Tuesday and Thursday from 3.00 pm to 6.00 pm; and
·Each Sunday from 12 noon to Monday 5.00 pm.
Pursuant to arrangements subsequently agreed to by the parties, the child currently spends time with the maternal family:
·Each Sunday from 11.00 am to Monday 6.00 pm;
·Each Tuesday from 3.00 pm to 8.00 pm; and
·Each Thursday from 11.00 am to 8.00 pm.
The child spends time with the mother at the mother’s residence and, less frequently, at the maternal grandmother’s residence. The maternal grandmother’s residence has a backyard that is available for the child to play in. On occasions, the child also engages in outings with the mother including, for example, to the zoo. The nature of the mother’s accommodation is an issue in these proceedings. The mother lives in a suburb of Sydney in a two-bedroom apartment, with a study, and she is supported by 24-hour care provided through the National Disability Insurance Scheme (“NDIS”).
Since being discharged from hospital, the mother has resumed work as a professional, on a part-time basis, working 12 hours per week with her pre-incident employer. The father remained in employment with AO Company in the period subsequent to the mother’s incident. In mid-2020, the father gave notice to his employer of his intention to resign, effective mid- to late 2020.[55] The father has been unemployed in the period since that resignation. The father was receiving a salary of $127,000 per year in his employment with AO Company.[56] No evidence has been presented that it was other than secure employment, with it being noted that it was the father himself who tendered his resignation.
[55] Transcript 21 October 2021, p.747 lines 19–28; Third respondent’s case outline, p.6.
[56] Transcript 21 October 2021, p.767 lines 14–15.
The father has remained unemployed since mid-2020 and is in receipt of social security benefits. He has, however, undertaken unpaid work in respect to his father’s businesses. I accept the evidence of the father’s treating psychologist Dr Z that the father advised her that he resigned from his employment with AO Company due to working with his parents.[57]
[57] Transcript 16 December 2021, p.8 lines 5–8.
Throughout his evidence, the father states a desire to return to Queensland to manage his parents’ business interests, which include managing their real estate portfolio, their privately managed investment funds and management companies. The paternal grandfather attests that a condition to the father managing his parents’ affairs is that the father lives in Queensland.[58]
[58] Transcript 15 December 2021, p.5 line 28 to p.6 line 5.
The father states that he wishes to undertake that work in his parents’ business because he considers it an opportunity to further develop the business, having regard to his financial skills. He also states that he will have flexibility in that employment which will enable him to play a more significant role in caring for the child.[59] I will subsequently set out why, aside from the insistence on the part of the paternal grandfather, I am satisfied that it is feasible for the father to undertake that work, in whole or in part, from New South Wales.
[59] Father’s affidavit filed 24 September 2021, paragraph 423.
The father attests to being in dire financial circumstances, due in part to the parties to the marriage retaining an ongoing obligation to pay the loan on the Suburb C property. That property was the parties’ former matrimonial home and is the property that the father lives in when he is in Sydney. The property is owned jointly by the parties. The paternal grandmother was not challenged on her evidence that the mother contributed $210,000 towards the purchase of the property and the paternal grandmother financed the father’s contribution of $210,000.[60] The parties to the marriage remain owing an amount loaned to them by the paternal grandparents in respect of that property, although it is not clear how much is outstanding on that loan. The paternal grandmother attested to lending the parties an amount of $847,875, pursuant to a loan agreement, to purchase the property.[61] However, the evidence establishes that some payments have been made to reduce that amount since the property was purchased.
[60] Transcript 22 October 2021, p.806 lines 35–47.
[61] Third respondent’s affidavit filed 20 September 2021, paragraph 28; Third respondent’s affidavit filed 17 August 2020, paragraph 100.
The father attests to not owning a vehicle in Sydney, however, he has access to a company car provided by his parents. The father further attests to being in dire financial circumstances as a result of legal fees incurred in these proceedings and being unemployed since he resigned from AO Company effective mid to late 2020. The father also attests to currently receiving social security benefits. That evidence is, however, incongruent with the uncontentious representation by the paternal grandmother as set out in her Case Outline document filed on 7 October 2021 that, in mid-2020, “[the father] resign[ed] from [AO Company] with a termination date of [late 2020] to begin taking over family affairs”. In that respect, the father acknowledges performing duties associated with his parents’ business interests, but the reasons why he has not received a salary in respect to that work and is instead being supported by social security benefits is unclear.
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
(i)the Mother and Maternal Grandmother provide at least 2 weeks' prior notice of their intended travel to Queensland and their dates of travel, and not more than once each month;
(ii)the Mother and Maternal Grandmother advise the address/location at which they will be staying with X in Queensland;
(b)From when X commences formal schooling, from 3pm on Friday to 8am on Monday on one weekend in each calendar month during X’s school terms, with any such weekend to be agreed between the parties, and provided that;
(i)the Mother and Maternal Grandmother provide at least 2 weeks' prior notice of their intended travel to Queensland and their dates of travel;
(ii)the Mother and Maternal Grandmother advise the address/location at which they will be staying with X in Queensland.
10.That for the purposes of any physical time the Maternal Grandmother spends with X pursuant to these Orders, the Mother shall be at liberty to be present to also spend time with X and the Maternal Grandmother shall be present with X at all times the Mother spends with X, and any other person or agent nominated by the Maternal Grandmother to be present with X in her place must be agreed between the Maternal Grandmother and the Father in writing, and on the basis that such persons provide an undertaking that they will be with X at all times and will remove X from the Mother's presence if X is exposed to harm.
11.That for the purposes of any overnight time the Maternal Grandmother spends with X pursuant to these Orders, the Maternal Grandmother is to ensure that X does not sleep in the Mother's bed or share a bed with the Mother, if the Mother is present with X pursuant to Order 9.
12.That during periods when X spends time with the Maternal grandmother pursuant to these Orders, the Maternal Grandmother shall facilitate X and the Father to have Facetime/video calls every second day, and for the purposes of this Order, the Father will dial/call the Maternal Grandmother or Mother's phone to initiate the call with X and in the event the call cannot or does not take place, the Maternal Grandmother (or the Mother) will send a text message the father to arrange another time for the call later that day.
13.That within 14 days of a request by either parent, the parents will do all acts and things and sign all documents necessary to apply for a passport (including renewals for passports) for the child and the Father shall pay all costs associated with applying for the passport(s), including any renewals and the Father shall be responsible for holding the child's passport.
14.That no less than 6 months before the child's passport/s are due to expire, the parents will do all acts and things necessary and sign all documents necessary to apply for new passport/s for the child and to direct that the passport/s be released to the Father.
15.That the father shall be permitted to take X out of Australia for holidays and for other short periods of time, provided that the following has occurred:
(a)The Father shall give not less than 42 days written notice his intention to travel overseas with the child, the notice shall include details of the proposed travel including but not limited to anticipated departure and arrival dates and details of the country or countries the Father and the child will be travelling to;
(b)The Father shall provide to the Maternal Grandmother in writing, not less than 28 days prior to the departure date, an accurate itinerary including but not limited to, the departure and return dates, the country or countries the Father and the child will be travelling to, the approximate dates on which the child will arrive and depart each country and a telephone number and address at which the Father and the child can be contacted in each country;
(c)The Father shall, not less than 14 days prior to departure, provide the Maternal Grandmother with a copy of the child's return air ticket;
(d)the period of travel shall occur wholly during the time the Father is scheduled to spend time with the child pursuant to these Orders, unless otherwise agreed between the parties in writing.
16.That each party is to keep the other informed of their current residential address, a telephone number and an email address and will advise the other party of any change to those details, at least 7 days prior to any change in residential addresses and within 24 hours of any changes to telephone number and email address and will otherwise allow and facilitate X and the other party to communicate by telephone at all reasonable times.
17.That each party keep the other informed of X’s health and any health issues as well as any procedures or operations to be undertaken at least 14 days prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care X is in to inform the other party as soon as possible).
18.That each parent authorise schools or child care centres which X may attend from time to time to provide directly to each parent any and all of the information in relation to X’s progress at school, parent/teacher night appointments, extra-curricular activities involving X so as to provide the other parent with the opportunity to attend.
19.Both parents are permitted to attend the child’s extracurricular activities and school for all school related events, including parent/ teacher interviews, parent days, assemblies, concerts and like events to which parents are invited.
20.That the parents be permitted to attend the child's medical appointments, and no other family member or third party attend such appointments, unless agreed between the mother and father.
21.That the parties shall be restrained from:
(a)Denigrating the other parent or a member of the other parent's family or household in the presence of or the hearing of the child and shall do all things necessary to ensure that the child does not hear third parties denigrating their parents or a member of their parents' family or household;
(b)Discussing these proceedings or any part thereof or the breakdown of the parental relationship with the child in the presence of the child or causing or permitting any third party to do so.
22.In the event that Queensland or New South Wales COVID19 border restrictions resume or are reinstated or isolation conditions imposed/required as a result of travel from time to time, notwithstanding these Orders, the parties shall forthwith do all acts and things necessary to cause X to be returned to the Father or the Paternal Grandmother in Queensland and the Maternal Grandmother's physical time with X be suspended during the period border/isolation requirements are imposed and IT IS NOTED THAT travel between New South Wales and Queensland for the purposes of complying with these Orders is an exemption to Border Restrictions Directions which may be issued by the Chief Health Officer of Queensland from time to time.
23.IT IS NOTED THAT for the purposes of facilitating these Orders, any reference to time of the day will be determined by Queensland time.
24.The mother shall continue to attend upon her treating psychiatrist and psychologist (or other psychiatrist or psychologist as recommended by them in the event they are unable to continue treating the mother) at such intervals as recommended, and follow all treatment recommendations.
25.That within 7 days of these Orders, the Mother shall irrevocably authorise and direct her treating psychologists and psychiatrists (from time to time) to provide the following information to the father in writing:
(a)Notice within 48 hours of the practitioner being aware that the mother has failed to comply with their treatment recommendations or failed to attend an appointment without rescheduling within 7 days, in accordance with Order 24;
(b)The mother has suffered a deterioration in her mental health sufficient for the practitioner to form the view that X would be at risk in the presence of the mother;
(c)Any other issue arising from their care or treatment of the mother that gives rise to them forming a view that X would be at risk in the mother's presence.
26.That the mother shall ensure that the father is kept advised in writing of the name, address and phone number of her treating psychologist and psychiatrist within 48 hours of the mother engaging with those practitioners.
27.Leave be granted for the parties to provide copies of any orders and judgment in this matter to the mother's treating psychologist and psychiatrist, general practitioner and care providers.
28.In the event the Mother fails to comply with Orders 24 or 26, or the Father receives notice pursuant to Order 25, then the Maternal Grandmother is restrained from bringing X into contact with the Mother pending a written confirmation from the Mother's treating psychologist and psychiatrist that the Mother's mental health is not a risk to X.
29.That the Father shall be permitted to enrol X into a day care or child care centre upon her return to Queensland with the Father and the Father shall advise the centre of the Mother's contact details and the Father shall advise the Mother of the day care X is enrolled into and authorise the Mother to receive reports and updates about X from the said centre.
*NOTING that the father may seek leave to amend the above following the close of evidence.
Orders sought by the Father in relation to Christmas 2021/January 2022
1.That Order 2 of the Orders made on 26 May 2020 be suspended from 23 December 2021 to 6 January 2022 inclusive (NOTING the time as varied between the parties by agreement).
2.That the child, X, born 2019 ("X") will spend time with her mother and maternal grandmother:
2.1From 3pm on 23 December 2021 to 3pm on 25 December 2021; and
2.2From 3pm on Monday 3 January 2022 to 7pm Wednesday 5 January 2022.
3.That further, X spend time with her mother and maternal grandmother:
3.1from 11am on Wednesday 14 January 2022 to 7pm Friday 14 January 2022, NOTING THAT X will recommence spending time with the maternal grandmother in accordance with Order 2 of the Orders made on 26 May 2020 (as varied by the parties by agreement) from 8 January 2021.
4.That X shall spend time with the paternal grandmother and father from 7.00am on 26 December 2021 to 5.00pm on 2 January 2021 and during that period the paternal grandmother and the child may, if there is no COVID19 requirement that upon entering Queensland they have to isolate, spend their time in Queensland, noting that the Father will be travelling with X as well.
5.That the paternal grandmother shall provide the Mother with Facetime with the child for 20minutes starting at 8.30 am (NSW time) on each of the following days:
5.128 December 2021
5.230 December 2022; and
5.31 January 2022
6.
In the event that Queensland border restrictions are varied during the period of travel pursuant to Order 4 hereof, the father and paternal grandmother shall forthwith do all acts and things necessary to cause X to be forthwith returned to NSW and IT IS NOTED THAT travel between New South Wales and Queensland for the purposes of complying with these Orders is an exemption to Border Restrictions Directions which may be issued by the Chief Health Officer of Queensland from time to time.
ANNEXURE 2: MOTHER’s & MATERNAL GRANDMOTHER’S proposed orders
Marked Exhibit “N” in the proceedings
LAMBARD & LAMBARD AND ORS
(SYC2664/2020)
ANNEXURE A:
MINUTE OF ORDER AS SOUGHT BY THE MOTHER AND MATERNAL GRANDMOTHER IN THE EVENT THAT THE FATHER IS LIVING IN SYDNEY
IT IS ORDERED:
Parental Responsibility
1.That the mother, father and maternal grandmother have equal shared parental responsibility for X (d.o.b. 2019) (“the child”).
Live-with Orders
2.Until the child turns four (4) years of age, the child shall live with the father and spend time with the mother and maternal grandmother:
2.1From the date of these Orders for a period of six (6) months:
2.1.1From 11.00 am Sunday until 8.00 pm Tuesday; and
2.1.2From 8.00 pm Wednesday until 8.00 pm Thursday.
2.2From the expiration of Order 2.1:
2.2.1In Week One:
2.2.1.1From 11.00 am Monday until 8.00 pm Wednesday;
2.2.1.2From 8.00 pm Friday until 8.00 pm Monday; and
2.2.2In Week Two, from 11.00 am Wednesday until the commencement of day care Friday (or 11.00 am if it is a non day care day).
3.From the expiration of Order 2 and thereafter, the child shall live in an equal time arrangement between the father and mother and maternal grandmother. The child shall live with the mother and maternal grandmother:
3.1.1Each Monday from afterschool or pre-school (or 11.00 am if it is a non-school day) until before school or pre-school Wednesday (or 8.00 pm if it is a non-school day); and
3.1.2Each alternate weekend, from after school Friday (or 11.00 am if it is non-school day) until before school Monday (or 11.00 am if it is a non-school day).
4.No party or parent shall enrol the child in daycare or preschool during the other party’s time with the child, without the written consent of the other parent or party.
5.No party or parent shall enrol the child in a school without the written consent of the other parent or party.
6.In the event that the child is attending daycare or preschool for additional days other than Friday as she currently attends, the mother’s time shall commence at the conclusion of day care and conclude at the commencement of day care on the changeover days.
7.In the event that the maternal grandmother is unable to spend time with the child pursuant to these Orders then the mother’s time shall occur in the presence of one of the maternal aunts, Ms R or Ms ZZ.
Holidays & Special Occasions
8.Notwithstanding any other order, the child shall spend time with the mother and maternal grandmother:
8.1Up until the child commences school, for a block period of five (5) days twice per year, provided that the mother gives the father sixty (60) days’ notice of her intention to spend time with the child pursuant to this order;
8.2Following the child’s commencement of school, for half of all NSW gazetted school holiday periods, being the first half in even numbered years and the second half in odd numbered years;
8.3From 5.00 pm on the Saturday before Mother’s Day, to before school or 10.00 am the following Monday;
8.4On the child’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day;
8.5On the mother’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day;
8.6During the Christmas period from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in even numbered years and from 5.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years; and
8.7During the Easter period, from 5.00 pm Good Friday until 12.00 noon Easter Sunday in odd numbered years, and 12 noon Easter Sunday until 5.00 pm Easter Monday in even numbered years.
9.Notwithstanding any other order, the child shall spend time with the father:
9.1Up until the child commences school, for a block period of five (5) days twice per year, provided that the father gives the mother sixty (60) days’ notice of her intention to spend time with the child pursuant to this order;
9.2Following the child’s commencement of school, for half of all NSW gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years;
9.3From 5.00 pm on the Saturday before Father’s Day, to before school or 10.00 am the following Monday in Sydney;
9.4On the child’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day in Sydney;
9.5On the father’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day in Sydney;
9.6During the Christmas period from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in odd numbered years and from 5.00 pm Christmas Day until 5.00 pm Boxing Day in even numbered years in Sydney; and
9.7During the Easter period, from 5.00 pm Good Friday until 12.00 noon Easter Sunday in even numbered years, and 12 noon Easter Sunday until 5.00 pm Easter Monday in odd numbered years in Sydney.
Changeover
10.Changeover shall occur at day-care, pre-school or school, or Suburb YY McDonalds if outside the hours of day-care, pre-school or school.
11.The mother and maternal grandmother are permitted to use maternal aunts Ms R or Ms ZZ as agents to facilitate changeover on their behalf if required.
Other Orders
12.The mother shall continue to attend upon her treating psychiatrist and psychologist (or other psychiatrist or psychologist as recommended by them in the event they are unable to continue treating the mother) at such intervals as recommended, and follow all treatment recommendations.
13.The father and/or paternal grandparents shall be solely responsible for the costs of any travel associated with the child spending time with him in Queensland pursuant to these Orders.
14.All parties shall facilitate facetime between the child and parent they are not spending time with once per day during block holiday periods, or at any other time as reasonably requested by the child.
15.The mother, maternal grandmother and father shall keep each other informed of any health issues and medical treatment of the child or any of them when the child is with them.
16.The mother, maternal grandmother and father shall use their best endeavors to organise medical appointments for the child at such times to allow the parties to attend, including attend via telehealth, and authorise any treating health practitioner to release the child’s medical information to the other parties.
17.Each party is at liberty to attend all school and extra-curricular activities and events ordinarily open to parents, and to ensure that the child attends all agreed extra-curricular events during their time with the child.
18.Each party is restrained from denigrating the other parties in these proceedings or their families in the presence of the child, and shall remove the child from the presence of any third party denigrating another party or another party’s family.
19.Each party shall keep the other informed as to their residential address, email address and mobile phone number.
Family Therapy
20.In the event that there is any difficulty with the implementation of these orders:
20.1The mother shall with fourteen (14) days of either receiving a request from the father or making a request to the father suggest three (3) names and contact details of family therapists
20.2The father shall choose from that list one (1) family therapist.
20.3Each party shall undertake any intake sessions with the family therapist
20.4Attend on the family therapist as recommended by the family therapist
20.5Each meet the costs of their own sessions with the family therapist and meet one half of the costs of any joint sessions.
LAMBARD & LAMBARD AND ORS
(SYC2664/2020)
ANNEXURE B:
MINUTE OF ORDER AS SOUGHT BY THE MOTHER AND MATERNAL
GRANDMOTHER IN THE EVENT THAT THE FATHER RELOCATES FROM SYDNEYIT IS ORDERED:
Parental Responsibility and Live With1.That the mother, father and maternal grandmother have equal shared parental responsibility for X (d.o.b. 2019) (“the child”).
2.That the child shall live with the mother and the maternal grandmother.
Time Spent with Father
3.That the child shall spend time with the father as follows each alternate week from 5pm on Friday through to 9am on Wednesday.
4.That the father shall have Facetime with the child on Monday, Wednesday and Saturday of each week at 4.00pm
Block holiday time
5.Up until the child’s commencement of school, that the child shall spend additional time with the father for four times per year for a block period of up to five (5) nights on the following conditions:
5.1That the father shall provide the mother 30 days notice of his intention to spend time;
5.2That the father shall provide the mother with travel details and accommodation details and contact details for the child;
5.3That during this time the mother shall have Facetime with X on Monday; Wednesday and Saturday of each week at 4.00pm;
5.4A maximum of one block to be taken in any four week period.
6.Following the child’s commencement of school, the child shall spend additional time with the father for half of all NSW gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years, with the first day of the school holiday period commencing at the conclusion of school on the last day of term.
7.Following the child’s commencement of school, the child shall spend additional time with the mother for half of all NSW gazetted school holiday periods, being the first half in even numbered years and the second half in odd numbered years, with the first day of the school holiday period commencing at the conclusion of school on the last day of term.
Special Occasions
8.Notwithstanding any other order, the child shall spend time with the father:
8.1From 5.00 pm on the Saturday before Father’s Day, to before school or 10.00 am the following Monday in Sydney;
8.2On the child’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day in Sydney;
8.3On the father’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day in Sydney;
8.4During the Christmas period from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in odd numbered years and from 5.00 pm Christmas Day until 5.00 pm Boxing Day in even numbered years in Sydney; and
8.5During the Easter period, from 5.00 pm Good Friday until 12.00 noon Easter Sunday in even numbered years, and 12 noon Easter Sunday until 5.00 pm Easter Monday in odd numbered years in Sydney.
9.Notwithstanding any other order, the child shall spend time with the mother and maternal grandmother:
9.1From 5.00 pm on the Saturday before Mother’s Day, to before school or 10.00 am the following Monday;
9.2On the child’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day;
9.3On the mother’s birthday from after school or day care until 7.00 pm or 12 noon until 7.00 pm if it is a non-school day;
9.4During the Christmas period from 5.00 pm Christmas Eve until 5.00 pm Christmas Day in even numbered years and from 5.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years; and During the Easter period, from 5.00 pm Good Friday until 12.00 noon Easter
9.5Sunday in odd numbered years, and 12 noon Easter Sunday until 5.00 pm Easter Monday in even numbered years.
10.That the father shall spend time with the child at all other times as agreed.
Changeover
11.Changeover shall occur at day-care, pre-school or school, or Suburb YY McDonalds if outside the hours of day-care, pre-school or school.
12.The mother and maternal grandmother are permitted to use maternal aunts Ms R or Ms ZZ as agents to facilitate changeover on their behalf if required.
Other Orders
13.The mother shall continue to attend upon her treating psychiatrist and psychologist (or other psychiatrist or psychologist as recommended by them in the event they are unable to continue treating the mother) at such intervals as recommended, and follow all treatment recommendations.
14.In the event that the maternal grandmother is unable to be present at all times pursuant to these Orders, then one of the maternal aunts, Ms R or Ms ZZ shall present with the mother when X is in the maternal family’s care.
15.The father and/or paternal grandparents shall be solely responsible for the costs of any travel associated with the child spending time with him pursuant to these Orders.
16.All parties shall facilitate facetime between the child and parent they are not spending time with once per day during block holiday periods, or at any other time as reasonably requested by the child.
17.The mother, maternal grandmother and father shall keep each other informed of any health issues and medical treatment of the child or any of them when the child is with them.
18.The mother, maternal grandmother and father shall use their best endeavors to organise medical appointments for the child at such times to allow the parties to attend, including attend via telehealth, and authorise any treating health practitioner to release the child’s medical information to the other parties.
19.Each party is at liberty to attend all school and extra-curricular activities and events ordinarily open to parents, and to ensure that the child attends all agreed extra-curricular events during their time with the child.
20.Each party is restrained from denigrating the other parties in these proceedings or their families in the presence of the child, and shall remove the child from the presence of any third party denigrating another party or another party’s family.
21.Each party shall keep the other informed as to their residential address, email address and mobile phone number.
Family Therapy
21.In the event that there is any difficulty with the implementation of these orders:
21.1The mother shall with fourteen (14) days of either receiving a request from the father or making a request to the father suggest three (3) names and contact details of family therapists
21.2The father shall choose from that list one (1) family therapist.
21.3Each party shall undertake any intake sessions with the family therapist
21.4Attend on the family therapist as recommended by the family therapist
21.5Each meet the costs of their own sessions with the family therapist and meet one half of the costs of any joint sessions.
NOTE: The mother and maternal grandmother may seek leave to amend this Minute following the close of evidence.
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