Lambman and Lambman (No.2) - [2011] FMCAfam 496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAMBMAN & LAMBMAN (No.2)

[2011] FMCAfam 496

FAMILY LAW – Parenting – dying parent – problematic role of positive law – wishes of children – ‘best interests’ considerations – use of research and materials from disciplines other than law (regarding bereavement) – litigation guardian for dying parent – virtues required of ‘surviving parent’ to be role model for children.

Family Law Act 1975, ss.60CA, 60B(1), 60CC(3)(c)
Federal Magistrates Court Rules 2001, Division 11.2

L v Human Rights & Equal Opportunity Commission (2007) 233 ALR 432
Mazorski v Albright (2008) 37 Fam LR 518
Monds & Mullan [2009] FMCAfam 58

Aristotle, Nicomachean Ethics
M. Kramer, Where Law and Morality Meet (Oxford: Oxford University Press, 2004)
M. Nussbaum, The fragility of goodness: luck and ethics in Greek tragedy and philosophy, (Cambridge: Cambridge University Press, 1986)
J. Pieper, The Four Cardinal Virtues, (Notre Dame: University of Notre Dame Press, 1966)
B. Raphael, The Anatomy of Bereavement, (New York: Basic Books, 1983)
Thucydides, The Peloponnesian War

A. Kellehear, “Grief and loss: past, present and future,” (19 August 2002) 177 Medical Journal of Australia 176
I. Maddocks, “Grief and bereavement,” (15 September 2003) 179 Medical Journal of Australia S6

B. Raphael, “Grieving the death of a child,” (2006) 332 British Medical Journal 620

Applicant:

MS LAMBMAN

Respondent:

MR LAMBMAN

Intervenor:

MS O

File Number:

CAC 2045 of 2007

Judgment of:

Neville FM

Hearing date:

24 February 2011

Date of Last Submission:

24 February 2011

Delivered at:

Canberra

Delivered on:

25 February 2011

REPRESENTATION

Solicitor/Advocate for the Applicant:

Ms L Strong

Solicitors for the Applicant:

Strong Law Pty Ltd, Canberra

Solicitors for the Respondent:

In person

Solicitors for the Intervenor:

In person

Solicitor for the Independent Children’s Lawyer

Ms J Lloyd, of Jeanine Lloyd & Associates, Canberra

ORDERS

The Father do all acts and things necessary to facilitate the 2 children [X] born [in] 1999 and [Y] born [in] 2000 with the maternal aunt Ms O as follows:
(i)For 4 hours on each Saturday from 11:00am to 3:00pm unless otherwise agreed. For 4 hours on each Sunday from 11:00am to 3:00pm unless otherwise agreed until the death or loss of consciousness of the Mother, whichever is the earlier.
(ii)For such other or alternate times as may be agreed by the Father and Ms O.
(iii)Changeover shall occur at The [C] Hospital or Hospice in which the Mother is being cared for unless otherwise agreed.
(iv)The Father shall do all things necessary to facilitate the children’s timely attendance at the Mother’s funeral and the Father shall do all things necessary to ensure that the children attend any memorial service or wake as organised by the Mother’s family members.
The Father and Ms O do all acts and things necessary to attend a Family Dispute Resolution Conference to discuss ongoing time the children are to spend with Ms O after the Mother’s death in light of the Father’s proposal to move to Tasmania.
The contravention application filed by…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lambman and Lambman (No.2)

Details

AGLC: Lambman and Lambman (No.2) [2011] FMCAfam 496
Case: [2011] FMCAfam 496
Decision Date: 25 February 2011

CaseChat Overview and Summary

The matter before the Family Court of Australia was a dispute between the parents of two minor children regarding arrangements for the children's access to their mother, who was terminally ill. The father sought orders to facilitate the children's visitation with their maternal aunt, as well as arrangements for the children's attendance at the mother's funeral and memorial services. The mother, in turn, had filed an application for contravention of a prior court order.

The court was required to determine whether the proposed visitation arrangements were in the best interests of the children and whether the father should be required to facilitate the children's attendance at the mother's funeral and memorial services. The court was also required to decide whether the contravention application should be stood over to a later date.

In making its decision, the court considered the evidence presented by both parties and the best interests of the children. The court found that the proposed visitation arrangements were in the best interests of the children and ordered the father to facilitate the children's access to their maternal aunt. The court also ordered the father and the maternal aunt to attend a Family Dispute Resolution Conference to discuss ongoing time the children are to spend with the maternal aunt after the mother's death. Finally, the court decided to stand over the contravention application to a later date to be advised.

In summary, the court made orders for the father to facilitate the children's visitation with their maternal aunt and attendance at the mother's funeral and memorial services. The court also ordered the father and the maternal aunt to attend a Family Dispute Resolution Conference and stood over the contravention application to a later date.

Orders

Orders of the court

The Father do all acts and things necessary to facilitate the 2 children [X] born [in] 1999 and [Y] born [in] 2000 with the maternal aunt Ms O as follows:

(i) For 4 hours on each Saturday from 11:00am to 3:00pm unless otherwise agreed. For 4 hours on each Sunday from 11:00am to 3:00pm unless otherwise agreed until the death or loss of consciousness of the Mother, whichever is the earlier.

(ii) For such other or alternate times as may be agreed by the Father and Ms O.

(iii) Changeover shall occur at The [C] Hospital or Hospice in which the Mother is being cared for unless otherwise agreed.

(iv) The Father shall do all things necessary to facilitate the children’s timely attendance at the Mother’s funeral and the Father shall do all things necessary to ensure that the children attend any memorial service or wake as organised by the Mother’s family members.

The Father and Ms O do all acts and things necessary to attend a Family Dispute Resolution Conference to discuss ongoing time the children are to spend with Ms O after the Mother’s death in light of the Father’s proposal to move to Tasmania.

The contravention application filed by the Mother be stood over to a date to be advised.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.