Lowy & Lindgren - [2008] FamCA 1010

FAMILY COURT OF AUSTRALIA

LOWY & LINDGREN

[2008] FamCA 1010

FAMILY LAW – CHILDREN – With whom a child spends time – Whether it is in the child’s best interests to spend time with the maternal grandparents – parental alienation – the benefit to the child of a meaningful relationship with the mother as the primary carer – the child’s future relationship with the maternal grandparents

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANTS:

Mr and Mrs Lowy

RESPONDENT:

Ms Lindgren

INDEPENDENT CHILDREN’S LAWYER:

Harris Leiberman, Solicitors

FILE NUMBER:

BRC

629

2007

DATE DELIVERED:

31 October 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

27 & 28 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	A Tonkin
SOLICITOR FOR THE APPLICANT:	Family Law Solutions

COUNSEL FOR THE RESPONDENT:	P O'Shaugnessy
SOLICITOR FOR THE RESPONDENT:	Adams Leyland, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	G Blank
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Harris Lieberman, Solicitors

Orders

That the mother shall have sole parental responsibility for … born … October 1999 (“the child”) AND the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the child live with the mother.
That the maternal grandparents or either of them may communicate with and/or have periods of time with the child as may be agreed upon by the parties.
That the mother shall use her best endeavours to ensure that her husband email or otherwise correspond with the maternal grandparents no less than 14 days prior to the child’s birthday and Christmas each year setting out a description of appropriate gifts from which the maternal grandparents may choose for the purpose of sending the child a gift on one or more of such occasions and for that purpose the mother shall cause the maternal grandparents to be given written details of a postal address for the purpose of sending any gift or gifts.
That in the event of the mother receiving a gift for the child sent by the maternal grandparents in accordance with the list provided by the mother’s husband pursuant to Order 4 she shall promptly provide that gift to the child and encourage her to immediately provide an acknowledgment to the maternal grandparents in such manner as the mother deems appropriate.
That the application of the maternal grandparents for parenting orders is dismissed.
That all documents produced on subpoena be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Lowy & Lindgren is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: BRC629 of 2007

MR and MRS LOWY

Applicant

And

MS…

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.

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Details

Case: [2008] FamCA 1010
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the matter of *Lowy & Lindgren*, heard by Rose J, the dispute concerned parenting orders. The primary orders addressed the parental responsibility for a child born in October 1999, with the mother being granted sole parental responsibility and the child to live with her. The maternal grandparents had applied for parenting orders, which were ultimately dismissed.

The court was required to determine the appropriate parenting arrangements for the child, including the extent of the maternal grandparents' involvement. This involved considering whether to grant the maternal grandparents any specific time with or communication with the child, and whether to make any orders regarding the exchange of gifts.

Rose J made orders that the mother have sole parental responsibility and that the child live with her. The court also made provisions for the maternal grandparents to communicate with and have periods of time with the child as agreed by the parties. Further, specific orders were made requiring the mother to use her best endeavours to ensure her husband provided the maternal grandparents with details of appropriate gifts for the child's birthday and Christmas, and that gifts sent by the grandparents be promptly provided to the child with an appropriate acknowledgment. The application by the maternal grandparents for parenting orders was dismissed.

Orders

Orders of the court

That the mother shall have sole parental responsibility for … born … October 1999 (“the child”) AND the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.

That the child live with the mother.

That the maternal grandparents or either of them may communicate with and/or have periods of time with the child as may be agreed upon by the parties.

That the mother shall use her best endeavours to ensure that her husband email or otherwise correspond with the maternal grandparents no less than 14 days prior to the child’s birthday and Christmas each year setting out a description of appropriate gifts from which the maternal grandparents may choose for the purpose of sending the child a gift on one or more of such occasions and for that purpose the mother shall cause the maternal grandparents to be given written details of a postal address for the purpose of sending any gift or gifts.

That in the event of the mother receiving a gift for the child sent by the maternal grandparents in accordance with the list provided by the mother’s husband pursuant to Order 4 she shall promptly provide that gift to the child and encourage her to immediately provide an acknowledgment to the maternal grandparents in such manner as the mother deems appropriate.

That the application of the maternal grandparents for parenting orders is dismissed.

That all documents produced on subpoena be returned to the person who produced the same.

That the proceedings be removed from the Active Pending Cases List.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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