Lowden & Lowden - [2022] FedCFamC2F 1138

Federal Circuit and Family Court of Australia
(DIVISION 2)
Lowden & Lowden [2022] FedCFamC2F 1138

File number(s): WOC 355 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 25 August 2022

Catchwords: FAMILY LAW – Parenting – final orders – consent on parental responsibility – allegations of family violence – Court makes findings as to family violence in text messages – consideration of legislative pathway – Court not satisfied father presents risk to the child – mother’s spend time with application described as “ridiculous” by expert – spend time with orders made for time with father – discrete issue as to child’s passport – orders made for mother to hold passport.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Victims Rights and Support Act 2013 (NSW)

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Briginshawv Briginshaw (1938) 60 CLR 336

Godfrey & Sanders [2007] FamCA 102

Goode & Goode [2006] FamCA 1346

Harridge and Anor & Harridge and Anor [2010] FamCA 445

In the marriage of Rice & Asplund [1978] FamCA 84

Johnson & Page [2007] FamCA 1235

KB & TC [2005] FamCA 458

M & M (1988) 166 CLR 69

M & S [2007] FLC 93-313

M v M (1988) 166 CLR 69

Mazorski & Albright[2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

McGregor & McGregor [2012] FamCAFC 69

Napier & Hepburn [2006] FamCA 1316

Tait & Densmore [2007] FamCA 1383

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 429

Date of hearing: 21 – 23 September 2020, 29 – 30 March 2021

Place: Sydney

Counsel for the Applicant: Ms Druitt

Solicitor for the Applicant: MDV Family Lawyers

Solicitor for the Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitor for the Independent Children's Lawyer: John Spence & Associates
ORDERS

WOC 355 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LOWDEN

Applicant

AND:
MR LOWDEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

25 august 2022

THE COURT ORDERS THAT:
1.That, subject to subparagraphs (a), (b), and (c) below, the mother have sole parental responsibility for the child X born in 2014 (‘the child’).
(a)That the mother:
(i)notify the father of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(ii)take into consideration any views expressed by the father about the proposed decision;

(b)That the father is permitted to contact the child’s school and authorise a nominee to collect the child from school (in accordance with order 4 below) for the purposes of the child spending time with the father as provided for by order 2;
(c)That, unless the mother and the father otherwise agree in writing, the mother is restrained from:
(i)changing the child’s name;
(ii)relocating the child’s residence or school enrolment to any area more than 150 km driving distance from City B NSW;
(iii)taking the child for counselling or allowing the child to attend with the mother for counselling relating to:
a.the child’s relationship with the father;
b.the mother’s relationship with the father; or
c.alleged abuse by the father towards the child or the mother; and

(iv)enrolling the child in any extra-curricular activities that will require the child to miss out on spending time with the father as provided for in these Orders.

2.That the child spend time with the Father as follows;
(a)During school term, for two weekends out of every four, with such weekends to align with the father’s weekends off work, as per his work roster, as follows:
(i)on one weekend, from 5:30 pm on Friday until 5:30 pm on Sunday; and
(ii)on one weekend, from the conclusion of school on Friday until the commencement of school on Monday.

(b)In even years, from the conclusion of school on Friday until midday on the second Saturday in the Term 1, 2 and 3 school holidays;
(c)In odd years, from midday on the second Saturday of the Term 1, 2 and 3 school holidays until midday on the last Saturday of the relevant school holiday period;
(d)For the Christmas school holidays at the end of Term 4:
(i)For the Christmas school holidays commencing in 2022, on a week about basis, the mother having the first week of the Christmas school holiday period in 2022;
(ii)For the Christmas school holidays commencing in 2023, on a week about basis, with the father having the first week of the Christmas school holiday period in 2023;
(iii)For the Christmas school holidays thereafter, on an equal basis with changeover taking place in the middle of the school holidays:
a.In even years, the father having the first half of the school holidays;
b.In odd years, the mother having the first half of the school holidays;

(e)At other times as agreed between the parties.

3.That the father forward a copy of his work roster to the mother at least 28 days before the commencement of any changes to the four week cycle referred to in Order 2(a) above.
4.That for the purpose of facilitating changeover, the parties (or their nominee known to the child) shall meet at The Location C, City B, unless times with the Father are expressed to be at the ‘commencement’ or at the ‘conclusion’ of school, and if it is a school day in which changeover is to occur at the child’s school.
5.That both parents shall be restrained by injunction from:
(a)Discussing these proceedings with or in the presence or hearing of the child, or showing any court document relating to these proceedings to, the child;
(b)Making critical or derogatory comments about the other parent or members of the other parent’s family or any member of the other parent’s household in the presence or within hearing of the child and will do all things reasonably necessary to immediately remove the child from the presence of anyone else who does so;
(c)Communicating with one another in a derogatory or belittling manner;
(d)Questioning the child in relation to his time with either parent;
(e)Consuming alcohol whilst caring for the child or within 12 hours of the child coming into their care.

6.That the parties will use their reasonable endeavours to be cordial and respectful to each other at changeovers.
7.That for the purposes of facilitating communication between the parents, each parent shall communicate using the Our Family Wizard application and to facilitate this order, if either party is not already established on Our Family Wizard, within seven days of the making of these orders, either party not so established shall make an account and shall do all things necessary.
8.That the parties keep each other informed of their contact telephone number and advise each other of any change within 24 hours.
9.That the parents shall do all acts and things and sign all documents necessary to obtain a passport for the child within three (3) months of either party notifying the other in writing of their intention to travel overseas with the child.
10.The parents shall renew and/or replace the child’s passport no later than six (6) months prior to the expiration of the passport pending the child attaining the age of eighteen (18) years.
11.Unless otherwise agreed between the parents in writing, the parents shall cause the child’s passport to be provided to the mother for safe keeping, with the father to be provided by the mother with a photocopy of the child’s passport and any renewals within seven (7) days of issue.
12.The parents shall equally bear the costs of each passport application or renewal for the child.
13.The parents shall use their best endeavours to ensure that any overseas travel for the child coincides with NSW school holiday periods.
14.The parent proposing to take the child overseas shall provide the other parent as much notification as possible of his or her intention to take the child overseas and in any event shall provide not less than sixty (60) days’ notice of such intention.
15.The parent proposing to take the child overseas shall provide the other parent with the following information in writing as soon as possible and not less than twenty-one (21) days prior to the proposed departure date:
(a)An accurate itinerary to include a copy of the parent’s and child’s return airlines tickets;
(b)The departure date from Australia and return date to Australia:
(c)Each country the parent and child will be travelling to:
(d)The date on which the parent and child will arrive and depart from each country other than Australia; and
(e)A telephone number and address at which the parent and the child can be contacted at each destination while overseas.

16.Each parent is restrained from taking or keeping the child overseas outside of the dates specified in the written itinerary provided to the other parent unless this is agreed to in writing by the other parent.
17.Upon the child returning to Australia, the father shall return the passport to the mother at the very next changeover of the child.
18.If a parent travels overseas with the child during period that coincides with a period of time the other parent is to spend with the child in accordance with these orders, the other parent shall be offered time with the child equal to the time missed by the parent with such time to take place within twelve (12) weeks of the child returning to Australia.
19.On the occasions that the father proposes to take the child out of Australia, the mother shall release the child’s passport to the father no less than thirty (30) days in advance of the overseas travel for the purpose of such travel.
20.Each parent shall forthwith, and contemporaneous with the event, advise the other of any medical emergency or significant illness experienced by the child, including sufficient information, consents and authorities to enable each party to speak with any treating doctor, to obtain information regarding the child’s health, prognosis and treatment, and to visit the child if hospitalised.
21.Each parent shall forthwith upon being advised of any specialist medical appointment for the child:
(a)Advise the other parent of same in writing (by text message or email);
(b)Do all things, sign all documents and give all consents and authorities necessary to enable each parent to attend such appointment or a subsequent separate appointment and to ensure that each parent is fully appraised regarding the child’s health, treatment and prognosis and anything required of them as a parent with respect to same.

22.These orders serve as authority for the father to receive copies of all school reports and application for school photographs from the children’s school, together with any other information that the parent would normally receive and any information the father may request regarding the child’s progress at school.
23.If there is a school function or event that allows for parental attendance or participation, each party is entitled to attend all such events involving the child

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 a pseudonym Lowden & Lowden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction

These Reasons relate to a final hearing of parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant Mother, Ms Lowden born in 1980 (“the mother”), and the Respondent Father, Mr Lowden born in 1969 (“the father”).
The parties have one child of the relationship, X, known as “X”, born in 2014 (“the child”). At the end of the final hearing the child was six years and six months of age. He is now seven years and nine months of age.
It was estimated by the parties and the Independent Child’s Lawyer (“the ICL”) that in consequence of the disposal of the financial issues, the final hearing would take no longer than two days of the three days initially allocated by the Court on 21 to 23 September 2020. In the event, the matter ran for five days on 21, 22 and 23 September 2020, continuing part heard on 29 and 30 March 2021.
Due to the SARS-CoV-2/COVID-19 pandemic, the entire hearing was conducted electronically over Microsoft Teams.
Ms Druitt of Counsel appeared for the mother.
Mr Lawrence of Counsel appeared for the father on 21 to 23 September 2020, and Mr Strik of Counsel appeared for the father on 29 and 30 March 2021 on a pro bono basis.
Mr Ladopoulos of Counsel appeared for the ICL.
The parties met in 2008, commenced cohabitation in 2009, were married in 2012, and separated on 16 February 2018.
The proceedings were commenced by the mother filing an Initiating Application on 6 April 2018 seeking final and interim parenting orders, including an urgent ex parte recovery order.
The father file his Response on 13 April 2018 seeking final and interim parenting orders.
During the course of the proceedings, the parties added property settlement issues and settled those proceedings on a final basis by consent orders made on 30 July 2020.
The materials relied upon at final hearing
The mother relied upon the following documents:
(1)Further Amended Initiating Application filed on 15 November 2019;
(2)Notice of Risk filed 6 April 2018;
(3)Affidavit of the mother sworn and filed 15 September 2020; and
(4)A case outline prepared by Ms Druitt, filed 16 September 2019.
The mother also relied upon the following exhibits:
(1)Exhibit A1 –a ‘Notice of Decision’ from the Commissioner of Victim’s Rights regarding the approval of support for the Mother dated 14 March 2019;
(2)Exhibit A2 –document from ‘Victims Services’ entitled ‘Recognition Payment for Ms Lowden’ dated 21 May 2020;
(3)Exhibit A3 – 20 pages of screenshot messages from Facebook Messenger from the Father to the Mother;
(4)Exhibit A4 – a document entitled ‘Treatment Report’ dated 17 September 2020 by Ms D, clinical psychologist on behalf of the child;
(5)Exhibit A5 – a document entitled ‘Treatment Report’ dated 17 September 2020 by Ms D, clinical psychologist, on behalf of the mother;
(6)Exhibit A6 – a 2 page letter dated 15 September 2020 entitled “Request for Progress Report’ from MDV Lawyers (for the Mother) to Ms D;
(7)Exhibit A7 – 25 pages of Ms D’s clinical psychology notes relating to the child;
(8)Exhibit A8 – 22 pages of Ms D’s clinical psychology notes relating to the mother;
(9)Exhibit A9 – the Applicant Mother’s final Minute of Order;
(10)Exhibit A10 – the Child Dispute Conference Memorandum to Court dated 20 November 2018;
(11)Exhibit A11 – document entitled ‘Orders 23 September 2020’ being an example of the Father’s 2021 work roster
(12)Exhibit A12 – a Google Maps map of City E to Town F; and
(13)Exhibit A13 – a Google Maps map of City E to Suburb V.
The father relied upon the following documents:
(1)Further Amended Response filed 14 September 2019;
(2)Notice of Risk filed 14 September 2020;
(3)Affidavit of the father sworn and filed 15 September 2020; and
(4)Affidavit of his partner, Ms G, sworn and filed 14 September 2020;
(5)Affidavit of the paternal grandmother, Ms H;
(6)Affidavit of his former wife, Ms J, sworn and filed 14 September 2020; and
(7)A case outline prepared by his solicitor and filed 18 September 2020.
The Family Report prepared by Dr K dated 29 June 2020 was tendered by the ICL and marked as Exhibit ICL1.
The mother was cross-examined by Mr Lawrence for the father and by Mr Ladopoulos for the ICL. All of the mother’s oral evidence was given through a court-provided interpreter for the Mandarin language.
The father was cross examined by Ms Druitt for the mother, and by Mr Ladopoulos for the ICL. Each of the father’s supporting lay witnesses – his former wife Ms J, his partner Ms G, and the paternal grandmother Ms H– were cross-examined by Ms Druitt and Mr Ladopoulos.
The Family Report writer, Dr K, was cross examined by Mr Ladopoulos for the ICL, Mr Strik for the father and Ms Druitt for the mother, with a brief re-examination by Mr Ladopoulos.
After the close of the evidence Mr Ladopoulos made submissions for the ICL, Mr Strik made submissions for the father, and Ms Druitt made submissions for the mother. Finally, Mr Strik made some short submissions in reply on behalf of the father.
The competing proposals of the parties
The mother sought the following orders, contained in her Final Minute of Order (Exhibit A9):
[1] That the mother have sole parental responsibility for the child, [X] born [in] 2014.
[2] That the child live with the mother.
[3] That the child spend time with the father, subject to the fathers work commitments, as follows:
[a] On the first Saturday every month from 10.00am until 4.00pm;
[b] On one Sunday closest to the child’s birthday from 10.00am until 4.00pm;
[c] During Christmas 2021 from 2.00pm Christmas Eve until 10.00am Boxing Day and each alternate year thereafter;
[d] On the weekend of Father’s Day from 5:00 pm on the Saturday before until 5:00pm on that day.
[e] If Mother’s Day falls on a weekend when the child is not already spending time with the mother, then the mother will spend time with the child from 5:00pm on the Saturday before the day until 5:00 pm on that day.
[4] That the fathers time spent with the child pursuant to Order 3 shall be arranged to work around the rotating work roster of the father noting that he is a shift worker and so as to facilitate same the father must provide the mother with a copy of his work roster no later than 48 hours following receipt of same by text message.
[5] That all changeovers take place at the [Location C, City B] with the father to collect the child from the mother at the commencement of his time and the mother to collect the child from the father at the conclusion of his time.
[6] Each parent shall forthwith and contemporaneously with the event, advise the other of any medical emergency or significant illness experienced by the child, including sufficient information, consents and authorities to enable each party to speak with any treating doctor to obtain information regarding the child’s health and prognosis and treatment.
[7] Each parent shall forthwith upon being advised of any specialist medical appointment for the child:
[a] Advise the other parent of same in writing (by text message).
[b] Do all things, sign all documents and give all consent and authorities necessary to enable each parent to attend such appointment or a subsequent separate appointment and to ensure that each parent is fully appraised regarding the child’s health, treatment and prognosis and anything required of them as a parent with respect to same.
[8] That both parents shall be restrained by injunction from:
[a] Discussing these proceedings, with or in the presence or hearing of the child, or showing any court documentation to, the child.
[b] Making critical or derogatory comments about the other parent or members of their family in the presence or within hearing of the child and will do all things reasonably necessary to immediately remove the child from the presence of anyone else who does so.
[c] Communicating with one another in a derogatory or belittling manner.
[d] Questioning the child in relation to his time with either parent.
[e] Consuming alcohol whilst caring for the child or within 12 hours of the child coming into their care.
[9] These orders serve as authority for the father to receive copies of all school reports and application for school photographs from the children’s school, together with any other information that the parent would normally receive and any other information the father any request regarding the child’s progress at school.
[10] That the parties keep each other informed of their contact telephone number and advise of any change within 24 hours.
[11] That each party do all things and sign all documents to ensure the child has a valid Australian Passport and in the event that the father fails to do so that mother shall be permitted to apply in the absence of obtaining the father’s consent by virtue of this order.
[12] That upon the Child turning the age of six (6) years, the parents shall do all acts and things and sing all documents necessary to obtain a passport for the Child within three (3) months of either party notifying the other in writing of their intention to travel overseas with the Child.
[13] The parents shall renew and/or replace the Child’s passport no later than six (6) months prior to the expiration of the passport pending the Child attaining the age of eighteen (18) years.
[14] Unless otherwise agreed between the parents in writing, the parents shall cause the Child’s passport to be provided to the Mother for safe keeping with the Father to be provided by the Mother with a photocopy of the Child’s passport and any renewals within seven (7) days of issue.
[15] The parents shall equally bear the costs of each passport application or renewal for the Child.
[16] The parents shall use their best endeavours to ensure that any overseas travel for the Child coincides with NSW school holiday periods.
[17] The parent proposing to take the Child overseas shall provide the other parent as much notification as possible for his or her intention to take the Child overseas and in any event shall provide not less than sixty (60) days’ notice of such intention.
[18] The parent proposing to take the Child overseas shall provide the other parent with the following information in writing as soon as possible and not less than thirty (30) days prior to the proposed departure date: -
[a] An accurate itinerary to include a copy of the parent’s and Child’s return airlines tickets;
[b] The departure date from Australia and return date to Australia;
[c] Each country the parent and Child will be travelling to;
[d] The date on which the parent and Child will arrive and depart from each country other than Australia; and
[e] A telephone number and address at which the parent and the Child can b contacted at each destination while overseas
[19] Each parent shall be hereby restrained from taking or keeping the Child overseas outside of the dates specified in the written itinerary provided to the other parent unless this is agreed to in writing by the other parent.
[20] On the occasions that the Father proposes to take the Child out of Australia, the Mother shall release the Child’s passport to the Father no less than thirty (30) days in advance of the overseas travel for the purpose of such travel.
[21] Upon the Child returning to Australia, the Father shall return the passport to the Mother at the very next changeover of the Child.
[22] If a parent travels overseas with the Child during a period that coincides with a period of time the other parent is to spend with the Child in accordance with these Orders, the other parent shall be offered time with the Child equal to the time missed by the parent with such time to take place within twelve (12) weeks of the Child returning to Australia.

The father sought the following orders, set out in his Further Amended Response filed 14 September to 2020:
Parenting
[1] That the parents shall each have equal shared parental responsibility for [X] (born [in] 2014) ("the Child").
[2] That the Child live with the Mother.
[3] That the Child spend time with the Father as follows;
[3.1] During the school term, in a four consecutive week rotation, with weeks one and two to align with the Father’s weeks off work as per his work roster as follows;
[3.1.1]Week one: from 5:30pm Friday until 5:30pm Sunday;
[3.1.2] Week two: from the conclusion of school Friday until the commencement of school Monday;
[3.1.3] Week three: no time with the father;
[3.1.4] Week four: no time with the father; and
[3.2] In even years;
[3.2.1] From the conclusion of school Friday until midday on the second Saturday term 1, 2 and 3 school holidays;
[3.2.2] From the conclusion of school on the last school day of term four until midday on the fourth
[3.2.3] Saturday of the Christmas school holiday period: and
[3.3] In odd years;
[3.3.1] From midday on the second Saturday of the term 1, 2 and 3 school holidays until midday on the last Saturday of the relevant school holiday period;
[3.3.2] From midday on the fourth Saturday of the Christmas school holiday period until midday on the last Saturday of the relevant period; and
[3.4] At times as agreed between the parties.
[4] The Respondent Father’s time:-
[4.1] At Order 3.1 shall be suspended during the operation of Orders 3.2 and 3.3: and
[4.2] Upon the commencement of school terms 1, 2, 3 and 4, week one in Order 3.1.1 shall recommence on the first weekend that the Respondent Father has of pursuant to his work roster.
[5] That for the purpose of facilitating changeover, the parties (or their nominee known to the Child) shall meet at The [Location C, City B], unless times with the Father are expressed at the ‘commencement’ or at the ‘conclusion’ of school, and if it is a school day in which changeover is to occur at the Child’s school.
[6] That the parties will use their reasonable endeavours to be cordial and respectful to each other at changeovers.
[7] Each parent shall forthwith, and contemporaneous with the event, advise the other of any medical emergency or significant illness experienced by the Child, including sufficient information, consents and authorities to enable each party to speak with any treating doctor, to obtain information regarding the Child’s health, prognosis and treatment, and to visit the child if hospitalised.
[8] That this Order serve as authority for the Father to receive copies of all school reports and applications for school photographs from the Child’s school together with any other information parents would normally receive and any other information he requests regarding the Child’s progress at school.
[9] Each parent shall forthwith upon being advised of any specialist medical appointment for the Child:
[a] Advise the other parent of same in writing (by text message or email);
[b] Do all things, sign all documents and give all consents and authorities necessary to enable each parent to attend such appointment or a subsequent separate appointment and to ensure that each parent is fully appraised regarding the Child’s health, treatment and prognosis and anything required of them as a parent with respect to same.
[10] If the Child is enrolled in an out of school activities, either party must inform the other party in writing of such activity and scheduled times that the Child is to attend. That each party be entitled to attend all events involving the Child including but not limited to:
[10.1] Sporting functions or lessons;
[10.2] Extra-curricular activities that allow for parental attendance or participation;
[10.3] School functions and events that allow for parental attendance or participation;
[10.3.1] AND the parent who has the Child in their care of the day of such activity will be responsible for the day to day care of the Child at such event including the Child’s transportation to and from the event unless otherwise agreed on between the parties.
[11] That both parties be restrained by injunction from: -
[11.1] Consuming alcohol to excess in the presence of the Child or for 12 hours before and during any period of spending time with the Child.
[11.2] Questioning the Child in relation to his time with either parent
[11.3] Speaking about the other parent in a derogatory way or from allowing the Child to remain in the vicinity of any other person who speaks about the other parent in a derogatory manner.
[12] That the parties keep each other informed of their contact and residential address details.
[13] That for the purpose of facilitating communication between the parents, each parent shall communicate regarding the Child via or such other application or website as the parties agree in writing ("the Website"), except in the case of emergency.
[14] To facilitate the preceding order, within 7 days of the making of these Orders, each parent will establish a parent account on the website and shall do all things necessary, to enrol in the program for one year subscription by completing the online signup process AND shall thereafter, conduct all parental communication using the Website’s features save for communication which must be acted upon in less than 24 hours.
[15] The parties shall use Calendar, Info Bank and Expense features ("other features") and shall use the Messaging feature only when the information cannot be conveyed in the other features.
[16] The parties shall not communicate by telephone or text message except regarding matters of an emergency nature regarding the Child that must be acted upon in less than 24 hours, and in the case of such emergency, the parties shall record the subject and content of the communication by a journal entry in the calendar feature of the programme.
[17] That, unless otherwise agreed in writing, or further Order of this Court, each parent will renew and keep current their subscription to the program during the Child’s minority.
Passport
[18] That upon the Child turning the age of six (6) years, the parents shall do all acts and things and sign all documents necessary to obtain a passport for the Child within three (3) months of either party notifying the other in writing of their intention to travel overseas with the Child.
[19] The parents shall renew and/or replace the Child’s passport no later than six (6) months prior to the expiration of the passport pending the Child attaining the age of eighteen (18) years.
[20] Unless otherwise agreed between the parents in writing, the parents shall cause the Child’s passport to be provided to the Applicant Father for safe keeping with the Respondent Mother to be provided by the Applicant Father with a photocopy of the Child’s passport and any renewals within seven (7) days of issue.
[21] The parents shall equally bear the costs of each passport application or renewal for the Child.
[22] The parents shall use their best endeavours to ensure that any overseas travel for the Child coincides with NSW school holiday periods.
[23] The parent proposing to take the Child overseas shall provide the other parent as much notification as possible of his or her intention to take the Child overseas and in any event shall provide not less than sixty (60) days’ notice of such intention.
[24] The parent proposing to take the Child overseas shall provide the other parent with the following information in writing as soon as possible and not less than twenty-one (21) days prior to the proposed departure date:-
[24.1] An accurate itinerary to include a copy of the parent’s and Child’s return airlines tickets;
[24.2] The departure date from Australia and return date to Australia:
[24.3] Each country the parent and Child will be travelling to:
[24.4] The date on which the parent and Child will arrive and depart from each country other than Australia; and
[25.4] A telephone number and address at which the parent and the Child can be contacted at each destination while overseas.
[25] Each parent shall be hereby restrained from taking or keeping the Child overseas outside of the dates specified in the written itinerary provided to the other parent unless this is agreed to in writing by the other parent.
[26] On the occasions that the Respondent Mother proposes to take the Child out of Australia, the Applicant Father shall release the Child’s passport to the Respondent Mother no less than fourteen (14) days in advance of the overseas travel for the purpose of such travel.
[27] Upon the Child returning to Australia, the Respondent Mother shall return the passport to the Applicant Father at the very next changeover of the Child.
[28 If a parent travels overseas with the Child during period that coincides with a period of time the other parent is to spend with the Child in accordance with these orders, the other parent shall be offered time with the Child equal to the time missed by the parent with such time to take place within twelve (12) weeks of the Child returning to Australia.
The ICL provided a “Partial Minute of Orders”, indicating that the ICL supported the making of orders as sought by the father in his Further Amended Response filed 14 September 2020 with some changes to orders 1 and 3.1 and the addition of a further order 4A;
Subject to the proposed amendments and comments set out below, the ICL supports the making of orders as sought by the Respondent Father in his Further Amended Response filed on 14 September 2020.
PARENTAL RESPONSIBILITY
The ICL seeks the following order in relation to parental responsibility, in substitution for Order 1 as sought by the father:
[1] That, subject to subparagraphs (a), (b), (c) and (d) below, the mother have sole parental responsibility for the child [X] born [in] 2014 (“the child”).
[a] That the mother:
[i] notify the father of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
[ii] take into consideration any views expressed by the father about the proposed decision;
[b] That the father is permitted to contact the child’s school and authorise a nominee to collect the child from school (in accordance with Order 5 below) for the purposes of the child spending time with the father as provided for by Order 3;
[c] That, unless the mother and the father otherwise agree in writing, the mother is restrained from:
[i] changing the child’s name;
[ii] relocating the child’s residence to any area more than 150 km driving distance from [City B] NSW;
[iii] taking the child for counselling or allowing the child to attend with the mother for counselling relating to:
·[a] the child’s relationship with the father;
·[b] the mother’s relationship with the father; or
·[c] alleged abuse by the father towards the child or the mother; and
[iv] enrolling the child in any extra-curricular activities that will require the child to miss out on spending time with the father as provided for in these Orders.
SPEND TIME
The ICL seeks the following order in relation to spending time, in substitution for Order 3.1 as sought by the father:
[3.1] During school term, for two weekends out of every four, with such weekends to align with the father’s weekends off work, as per his work roster, as follows:
[a] on one weekend, from 5:30 pm on Friday until 5:30 pm on Sunday; and
[b] on one weekend, from the conclusion of school on Friday until the commencement of school on Monday.
The ICL seeks the following order in relation to the child’s spending time with the father, in addition to the Orders sought by the father:
[4A.] That the father forward a copy of his work roster to the mother at least 28 days before the commencement of any changes to the four week cycle referred to in Order 3.1 above.
PASSPORT
Each party seeks an order that they hold the child’s passport. The ICL does not have a view about this issue and considers that are arguments to support both side’s proposals.[1]
[1] I note that while the ICL’s minute refers to a subparagraph 1(d), no such paragraph appears on the document.
During submissions for the father, Mr Strik advised that the father was amending his order 18 so as to provide that there be no application for a passport for the child until he had attained 13 years of age.
Mr Strik also advise for the father that he accepted the ICL’s proposed order that the mother have sole parental responsibility subject to subparagraphs (a), (b) and (c) in that draft order, but with in addition to the ICL’s order 1(c)(ii) of the words “or school enrolment” so that the sub-order read:
[1] That, subject to subparagraphs (a), (b), (c) and (d) below, the mother have sole parental responsibility for the child [X] born [in] 2014 (“the child”).
…
[c] That, unless the mother and the father otherwise agree in writing, the mother is restrained from:
…
[ii] relocating the child’s residence or school enrolment to any area more than 150 km driving distance from [City B] NSW”.
The father’s acceptance of the mother having the benefit of the sole parental responsibility order, subject to the subparagraphs, was in line with his evidence during his cross examination by Mr Ladopoulos on the issue when he agreed with Mr Ladopoulos that as the child:
is going to be living primarily with his mother, it makes more sense that she be the one that [has] greater responsibility.[2]
[2] Transcript 29 March 2021, page 244 line 21 to page 245 line 36.
During submissions for the mother, Ms Druitt advised that the mother also consented the ICL’s order 1 in relation to her having sole parental responsibility, which also provides her consent to subparagraphs (a), (b) and (c).[3]
[3] Transcript 30 March 2021 page 348 lines 42 to 43.
Ms Druitt later indicated that the mother also consented to the addition to the ICL’s order 1(c)(ii) of the words “or school enrolment” as proposed by the father.[4]
[4] Transcript 30 March 2021 page 354 lines 44 to 46.
That consent eliminated the issue presented by the mother’s proposed order 5 in relation to changeovers containing the words “with the father to collect the child from the mother at the commencement of his time and the mother to collect the child from the father at the conclusion of his time”, as far as changeovers occurring at the child’s school were concerned.
Ms Druitt also advised the court in submissions that the mother consented to all of the father’s orders that related to the child’s passport and to overseas travel with either parent, but not those orders that provide for the father having possession of the child’s passport when not travelling – that is, Ms Druitt signified the mother’s consent to orders 18 to 25 and 28 as sought by the father.[5] Of course, those orders are also orders 12 to 19 and 22 of the mother’s Final Minute of Order, with her orders 20 and 21 providing that she retain possession the child’s passport when the child is not travelling.
[5] Transcript 30 March 2021 page 348 lines 43 to 47.
Though the mother seeks and consents to the suite of orders providing for either parent to take the child outside the Commonwealth of Australia for a holiday, the time proposed in the mothers orders for the child to spend with the father would prohibit any such travel outside Australia by the child with the father unless the father was able to squeeze it in between 2 PM on Christmas Eve and 10 AM on Boxing Day each alternate year.
The mother maintained to the end of the hearing her order 3 in relation to the time between the child and the father.
Also in submissions for the father, Mr Strik advised the court that he consented to the ICL’s proposed order 3.1 in place of the father’s proposed order 3.1 and the ICL’s proposed order 4A being a companion order to 3.1.
Accordingly, the principal issues for decision are:
(1)The amount of time that the child should spend with his father;
(2)Which parent should retain possession of the child’s Australian Passport and at what age should an Australian Passport be obtained for the child.
The evidence
At the end of the final hearing the mother was 40 years of age, the father 52 years of age and the child six years and six months old. The child was in Grade 1 at City E Public School, where he would now be in Grade 2.
The mother was born in the People’s Republic of China and came to Australia as an international student in 2006. She undertook a Masters of Finance at City M University and graduated in 2007. She commenced working in Sydney in 2007. After meeting the father, she undertook a course called Course N in Finance.
The father was previously married to Ms J in 1996 and they separated in 2007, but have remained close friends, Ms J giving evidence on his behalf in the final hearing. They had two children, daughters Ms O born in 1999 and Ms P born in 2002. The father has a close and loving relationship with both of his daughters. Ms J , Ms O and Ms P live in their home at Suburb Q, an inner western suburb of City M.
The parties met in 2008 at City M University and commenced their cohabitation in 2009.
Throughout the parties’ relationship, the father worked at the Employer R, where he has worked since he was 21 years of age. Throughout the relationship, and continuing to the time of the hearing, the husband worked on a full-time basis as a shift worker, doing 12 hour shifts on either the day shift (6 AM to 6 PM) for the night shift (6 PM to 6 AM). At all relevant times he has worked 3 to 4 days per week, and continue to do so at the time of the final hearing.
The father was also a member of the Armed Forces throughout the parties’ relationship, as he has been since 2001. This membership commits him to 20 days of service per year. He gave evidence that:
It’s regular. It’s a Tuesday night from 7 o’clock at night till 10 o’clock at night. So 40 three hours a month on a Tuesday night.[6]
in addition to the compulsory call out on a weekend and a week in training per year.
[6] Transcript 23 September 2020 page 133 line 40 to 41.
The mother obtained employment with Employer S at Town AL in 2009 two days per week, attending her courses for the Course N in Finance on the other 5 days per week. After completing the course and obtaining her permanent residence visa, the mother began working 5 days per week at Employer S. Sometime thereafter the mother changed to working for Employer S at Suburb T 5 days per week.
In 2012 the mother became an Australian citizen and in 2012 the parties married.
At all relevant times the father has owned a farm property in the City B area, at Town F. There is shed accommodation on the farm property with interior improvements divided into rooms with all appropriate living amenities and, on the evidence from the paternal grandmother during cross examination that has not been contradicted, that accommodation is council approved for occupation.
When they began cohabitation the parties lived in a rented unit at Suburb U and then moved in for a while with the father’s parents at their home at Suburb V before purchasing their own home together at City AB in 2013 and moving in shortly after the settlement.
The mother returned to China for a holiday for three weeks in late 2011.
In 2014 the mother’s parents visited her from China and stayed for 6 weeks.
Child was born in 2014. The mother ceased her employment about two months prior to his birth and the father took two weeks paternity leave following his birth.
The father says that between 2014 and early 2015 the mother was the child’s primary carer and that he assisted her when he was not attending at his employment. He says in paragraph 23 of his trial affidavit:
Whilst [X] was a baby, I observed [the mother] to be an attentive, loving and caring mother to [X].
For her part, the mother asserts in her evidence that the father “was little help with the care of X when he was an infant.”
The wife’s parents also came to stay with them in Australia from early 2015 to November 2015 and helped with the care of the child. With this additional help, the wife was able to return to work in early 2015 at Employer S at Suburb T on Tuesdays and Wednesdays from 9 AM until 5 PM and Thursdays from 9 AM until the end of late night shopping.

After the mother’s parents returned to China in November 2015, the paternal grandparents cared for the child at their home at Suburb V when the mother and father were at work. Out of expediency the parents and the child lived at the paternal grandparents home about half of each week, often staying from Monday afternoon until Friday. The parties and the child had their own room at the paternal grandparents’ home.
During 2016 the paternal grandmother enrolled the child into day-care at Suburb V Day Care Centre every Wednesday from 9:30 AM until 11:30 AM and he attended for a year. In December 2016 (the father says October 2016) the mother enrolled the child into day-care at City AB Preschool on Friday each week, which was increased at some time thereafter to Monday and Friday each week.
In October 2017 the paternal grandmother enrolled the child into a playgroup at Z Play Group every Thursday and this continued until the parents separated in February 2018.
The father says that during 2017 and until the parties separated in 2018, on some weekends when he was not working the mother would travel to Sydney to spend the weekend shopping “and have some time out” and on these occasions the father would care for the child on his own, usually at the father’s farm at City B.
In June 2017 the mother again travel to China for a holiday for one week. She says that on her return she considered that the relationship between she and the father had deteriorated and that they stopped sleeping together and she moved into the guest room in August 2017.
The mother’s evidence indicates that during October 2017 the parties’ relationship was breaking down and she annexes to her trial affidavit as annexure A4 copies of a hand written and three text messages received by her from the father. The first is a handwritten note dated 22 October 2017 reading:
[Ms Lowden], I packed your car now FUCK OFF! You are incapable of caring for [X]. I am selling the house & will contact your divorce lawyer with Details.
The first text message is dated 25 November and reads:
Dear [Ms Lowden], I am officially informing you that we are now separated as man and wife and I will be filing for a divorce in [City AB] Local Court by August 2018. The grounds for divorce will be Irreconcilable Differences. Until such times we will remain separated. If you have any questions I can recommend independent legal advice. Yours Sincerely [Mr Lowden] 20 November 2017.
The father says in paragraph 160 trial affidavit:
From about October 2017, [Ms Lowden] and I talked about “separating”. It was not until [Ms Lowden] left our home with [X] on 16 February 2018 that I consider we had separated on a final basis.”
The next two text messages in Exhibit A4 to the mother’s affidavit are both dated 4 February 2018 and read:
Dear [Ms Lowden], it is recommended that you change your surname back to your maiden name as soon as possible as my above intent is to divorce you. It is an inexpensive way of gaining dignity for us both. Kind regards [Mr Lowden] 04 Feb 2018
and
To [Mr Lowden], formally I have taken u of my call register. If it’s an emergency simply notify me through Facebook [Mr Lowden] 04 Feb 2018.
During the parties’ relationship, and, on the evidence of his former wife Ms J , during their relationship, the father had a problem with abuse of alcohol. The mother says that he had been:
drinking at least 1 bottle [of] wine every day since we met.
Ms J said:
During my marriage to [Mr Lowden], I observed [Mr Lowden] drank a lot of red wine. [Mr Lowden] drank after his shift or of an evening, although never before work.
The father’s drinking was a cause of problems between the parties, and the mother says that after she raised concerns about his drinking he consulted a doctor in January 2017. The father says that in 2017 in made a New Year’s resolution to give up drinking and attended his local GP and under his guidance:
undertook a home detox program which took approximately five days.
The father says:
I have not consumed a drop of alcohol since
There is no evidence in the matter to contradict the father’s assertion.
Ms J, who on the evidence has been in weekly touch with the father between February 2018 and the hearing deposed in paragraph 17 of her affidavit:
I have not observed [Mr Lowden] to have a sip of alcohol for approximately three years.
The paternal grandmother gives evidence in paragraph 30 of her affidavit that:
Since mid-2017, I have never witnessed [Mr Lowden] consuming any alcohol.
The father gives evidence of the mother having a problem with alcohol, but that evidence contains no detail and there is no assertion that the mother had a problem with alcohol at the time of the hearing or that it had affected her ability to care for the child at any time except for an isolated incident on 22 October 2017 that the mother relates.
Another area of tension between the parties during their cohabitation was the father’s ongoing relationship with his daughters, Ms O and Ms P, and, not surprisingly in the normal course of human relations, his ongoing close relationship with his former wife, Ms J. The father says that in consequence of the attitude shown by the mother:
By the end of 2015, my daughters simply did not come to visit with me at the [City AB] home. Instead, I would visit them at my parents’ home when [Ms Lowden] was not around or at [Ms J]’s home. From around 2016 and until separation, I took [X] to visit with his sisters at my parents’ home at least once per week without [Ms Lowden] present.
The father’s evidence is supported by Ms J who says in paragraph 10 of her affidavit
About two years after [Ms Lowden] and [Mr Lowden] purchased the [City AB] property, [Ms P] told me that “[Ms Lowden] won’t let us there anymore.” From that day onwards, the children never stayed at the property at [City AB].
The mother asserts in paragraph 119 of her trial affidavit that she was not allowed to talk to X in Chinese or to teach him any of the Chinese language, or to talk to her friends in Chinese. During cross examination the father denied the mother’s assertion.
In paragraph 34 of her trial affidavit the mother asserts that she:
was not allowed to have Chinese food in the little unit. [Mr Lowden] used to flush my Chinese food into the toilet while I was at work. I came back from work and could not find it. I asked him where my food was and he said: it was disgusting and I flush them to the toilet.
The mother’s evidence quoted begins with a general assertion of the father flushing her Chinese food in the toilet while she was at work on multiple occasions – “used to” – and then passes to evidence of a particular occasion.
The father was cross examined about this assertion by Mr Ladopoulos:
MR LADOPOULOS: She said that she wasn’t allowed – well, presumably that you didn’t allow her to eat [Chinese] food and you used to flush the [Chinese] food into the toilet; is that true?
FATHER: on – on – yes, I got to explain it, but, yes, that is true.
LADMR OPOULOS: okay. Well, what’s the explanation?
FATHER: the explanation was we were living in a unit and she cooked a hot pot and it was – and it was like an orange soup, and it was left there at room temperature on the stove for – for an awful amount of time. And – and she was having it before breakfast that she was having it – sorry, she was having it for breakfast and then going to work. And on one occasion she had it and – and she vomited in the toilet, you know, so it was all – it had been sitting there for days and it had like an oil, sort of, growing on top of it, you know. And after about four days, I – I did flush it down the toilet. Yes. And I, you know, I think we went out for tea that night and – I – I – it is true, but the – there was a reason for it, I was just worried about her health more than anything.
MR LADOPOULOS: well, did you tell her she wasn’t allowed to have Chinese food?
FATHER: No, no, not at all. No. I love Chinese. I was always having – no.
The father also denied in cross examination by Mr Ladopoulos that he had any opposition at any time to the child learning the Chinese language.
In January 2018 the mother again holidayed in China on her own, leaving the child in the care of the father, assisted by his parents when he was attending at his employment. The mother says that she spent three weeks in China, the father says that she spent “about four weeks” in China. The mother returned to Australia on 28 January 2018 and was collected from the airport by the father and the child.
The mother’s trial affidavit moves directly from her return to Australia on 28 January 2018 to 14 February 2018 when:
[Mr Lowden] then left me a love letter which only confused me more.
She then gives evidence about 15 February 2018, which in the light of other evidence and the parties separation the following day, I consider it important to include in full from paragraphs 1 29 to 132 of her trial affidavit:
[129] On 15 February 2018 after work I went back home and it was Chinese New Year Eve. [X] was very unsettled I took [X] to [Store AC], [City AB] and bought him a truck to give [Mr Lowden] a break. We went back after 1 hour or so. I asked [Mr Lowden] what he wants for dinner and he said he did not want anything. I made a video call to my parents in China. [X] and I were talking to them while [Mr Lowden] was sitting on the red lounge in the lounge room. [Mr Lowden] walked off to the kitchen by himself while my parents were looking for him to talk.
[130] Later that night [X] was crying to sleep with me but [Mr Lowden] still insisted that [X] should sleep by himself while [Mr Lowden] was sleeping on the mattress in [X’s] bedroom. I helped [Mr Lowden] to calm [X] down while [Mr Lowden] kept sighing. I was very much scared and then told him that it would be easier to let [X] sleep with me in the night so everybody could have a good sleep. I took [X] with me and did not sleep that night. The next day [Mr Lowden] was going to night shift. He said he had to go earlier to get his pink slip. I prepared him lunch which I did most days but he did not take either his lunch in the fridge or his fresh clothes I set out for him, which he normally always does.
[131] I waited until after [Mr Lowden] left for work and I decided I was going to leave this day.
[132] I left with [X] and some clothes packed for both of us. [X] and I went to a local refuge.
In paragraph 7 of the mother’s trial affidavit she says:
On 16 February and 2018 I fled the former family home with [X] to stay at a local refuge.
In paragraph 136 of a trial affidavit the mother says:
[Mr Lowden] had previously threatened to take [X] from me if I ever left him.
In paragraph 137, she says:
This scared me greatly.
This is the only threat, of any nature, asserted by the mother in her trial affidavit to have been made to or about her by the father up to their separation on 16 February 2018, though as I have recited she referred to having “fled the former family home” in paragraph 7 and that she “was very much scared” in paragraph 130.
In paragraph 171 of her affidavit, during a telephone call between herself and the paternal grandfather following an incident that I will detail on 31 March 2018 when the father and the paternal grandparents took X by a trick out of the mother’s care and into their care, the mother asserts that she said “I left because Mr Lowden continues to threaten me. That’s why I left”.
The mother’s trial affidavit does not contain any evidence asserting that the father made any threat to her (or to the child) after the parties’ separation. During her cross examination by Mr Lawrence for the father she was asked, referring to the father:
MR LAWRENCE: he has not made any threats to your personal safety, has he?
MOTHER: Until now, no.
MR LAWRENCE: What you mean quote until now?
MOTHER: What I mean is from separation until now, he hasn’t.
The foregoing detail in relation to the mothers trial affidavit evidence is necessary in the light of evidence produced in a document tendered on behalf of the wife and marked as Exhibit A3 and matters arising in the father’s cross examination by Ms Druitt on behalf of the mother.
The mothers trial affidavit gives no evidence whatsoever in relation to the period between 28 January 2018 and 14 February 2018.
The father asserts in paragraphs 107 to 110 of his trial affidavit:
[107] A few days after she returned from spending four weeks in China, she asked me “sit down with me in the kitchen”. [Ms Lowden] then said to me “our marriage has problems. But my boyfriend in China and I have decided that we won’t get together because we don’t want to break our families up. He had a wife and child to”. I was shocked and saddened by this admission.
[108] After this conversation, [Ms Lowden] and I then took [X] to preschool together and then [Ms Lowden] drove me to the train station that afternoon and I went to work.
[109] While I was at work, I started to think about what [Ms Lowden’s] admission to me meant. I became angry because I loved her but realised that she had been having an affair. I admit that I was very wound up and I sent her a text message that evening which I wish I had not sent. It would have been hurtful to [Mr Lowden]. I swore at her. It was out of character.
[110] The following day, I regretted sending the text message.
The text message referred to is actually three text messages sent by the father to the mother on 5 and 6 February 2018. The text messages are not referred to in the mother’s trial affidavit. They are contained in the mothers “exhibit bundle” from which individual tenders were made at the commencement of the final hearing. The relevant text messages are part of pages 10 to 29 thereof being Exhibit A3, all of those pages being prints of text messages passing from the father to the mother.
On examination of the document, it is plain that the pages consecutively numbered in the Tender Bundle that became the exhibit are out of order as to the relevant dates upon which the text messages were sent. The correct date order is pages 10, 11, 14, 13, 12, 17, 16, 15, 19 to 23, 25, 24, 27, 26, 29 and 28. Where page 18 fits in I could not work out.
The three text messages that are relied upon by the mother to ground her fear of the father are found on numbered page 17 of Exhibit A3:
(1)On 5 February 2018 and 11:56 PM – “I’m coming after little China boy. After I fuck you off. He’s next!”;
(2)Immediately after – “You pair of fucking shit cu**ts disgust me”;
(3)At 6:23 AM on an unspecified date, but on the whole of the relevant evidence I find to be 6 February 2018 – “I still can’t believe the fucking stress you and little China boy put me and X through. You pair of fucking retarded cu**ts are going to pay!”
The words in which I have placed asterisks are explicated in the message.
During the mothers cross examination by Mr Lawrence for the father, the following evidence was given by the mother:
MR LAWRENCE: You say a paragraph 319 that you would like your address to remain private.
MOTHER: Yes
MR LAWRENCE: Why would you not feel safe if [Mr Lowden] knows where you and [X] are living?
MOTHER: This is my life experience. I don’t know what he’s going to do about it. Because, I would feel not safe.
MR LAWRENCE: What has he done that makes you feel unsafe about him knowing where [X] and you are living?
MOTHER: The thing is, one month before the separation or before I moved out when we slept in the different bedrooms, he would actually – in the middle of the night, he would come into my bedroom and then stood in front of the bed, and I got so scared. I even didn’t know how or when he entered into the room.
MR LAWRENCE: do you say that he is going to do that again?
MOTHER: I don’t know. I don’t know what he is going to do. That’s why I’m scared.
MR LAWRENCE: Well, I put to you that there is no reason for you to think that he would do that.
MOTHER: I disagree. You were not him, so you wouldn’t know. I am not him, so I wouldn’t know.
MR LAWRENCE: There is no reason why you would not feel safe if [Mr Lowden] knew where you and [X] were living.
MOTHER: So you are saying that if he knows where we live, it’s okay and I would feel safe; is that correct?
MR LAWRENCE: Yes.
MOTHER: I disagree.
MR LAWRENCE: You said a few moments ago that one of the reasons you don’t feel safe is because [Mr Lowden] was tracking your phone.
MOTHER: Yes. And that’s one of the major reasons after our separation.
MR LAWRENCE: So that’s one of the reasons you would not feel safe [Mr Lowden] knowing your address. And the other reason you don’t feel safe if [Mr Lowden] knows your address is that he came into your room – your bedroom in December 2017 while you were sleeping or trying to sleep.
MOTHER: Another reason is the SMS that [Mr Lowden] sent me. He was trying to threaten me in the SMS.
There was then an adjournment for morning tea break and then the evidence resumed.
LAWRENCE: [Ms Lowden], you said that you had received some SMS messages, or a message, from [Mr Lowden], which caused you some fear or concern.
MOTHER: Correct.
LAWRENCE: Was it one SMS or several?
MOTHER: It was over a period of time with MS – SMS and – plus the Facebook Messenger.
LAWRENCE: Are these the messages that you refer to in your affidavit?
MOTHER: Yes. I think I mentioned it.
LAWRENCE: You said that a major concern was [Mr Lowden] tracking your phone.
MOTHER: No. Tracking my phone is just one – was one-way.
LAWRENCE: So it was one of the major reasons you don’t want him knowing where you live?
MOTHER: The main reason I don’t want him to know where I live is the fear for my personal safety.
LAWRENCE: Why are you concerned for your personal safety?
MOTHER: Because, over a long period of time, he has been sending me messages to threaten me.
LAWRENCE: And those messages are in your affidavit?
MOTHER: Yes.[7]
[7] Transcript 22 September 2021 pages 70 to 74.
The SMS messages referred to by the mother as threatening were not in her affidavit, but were the messages on numbered page 17 in Exhibit A3.
The father was cross examined about the text messages by Ms Druitt for the mother on 23 September 2020. The cross examination included the following:
MS DRUITT: But it is the case, isn’t it, that you’re the only one who has threatened to kill [the mother]?
FATHER: I don’t – I said some terrible things, yes.
MS DRUITT: No, no. Can I suggest, you can’t be mealy-mouthed about this, if you’re going to show any regret. You actually threatened to kill her, didn’t you?
FATHER: I would have to look at the documents again, but I don’t think so.
[The father read the relevant messages through over the lunch break and cross examination resumed after the lunch break]
MS DRUITT: [Ms Lowden], did you get to read the SMSes that are in the mother’s tender bundle 2 at page 17?
FATHER: Yes, ma’am, I did.
MS DRUITT: Right. Now, when we look at those text messages on page 17, it is reasonable to interpret them as threats to kill the mother and her boyfriend, aren’t they?
FATHER: I apologise. That wasn’t my intention. I know there – there – they’re shocking, but that wasn’t my intention. I apologise.
HIS HONOUR: No. Well, that’s not an answer to the question. That’s sort of going round the back of the question.
FATHER: Yes, apologies, your Honour. It – it could be misconstrued, yes, that is correct.[8]
[8] Transcript 23 September 2021 page 168-169, 171.
Cross-examination of the father in relation to the text messages was resumed on 29 March 2021 when the father was taken to paragraph 95 of his trial affidavit where he said:
I am aware that [Ms Lowden] alleges that I threatened to kill her. I would never kill or harm [Ms Lowden] and I have never said any such thing nor have I ever threaten to harm you in any way
The following exchange occurred:
DRUITT: Because you go on to say I would never kill or harm her, but you’ve told her you’re going to kill her in writing?
FATHER: When I wrote it, I didn’t mean I was going to kill her. It was just…
DRUITT: Right. Just a slip of the finger, was it?
FATHER: No, no. It wasn’t – it was – I know it’s abusive and shocking, but my intention wasn’t to go around, you know, killing. It was just – I don’t know what my intention was, to be honest.[9]
[9] Transcript 29 March 2021 page 229.

Later on that day during the father’s cross examination, Ms Druitt put to him:
But, of course, you’re the person who has threatened death; yes?
to which the father replied:
Yes, that’s correct.
During cross examination of the mother by Mr Ladopoulos for the ICL, he took her to the three SMS messages under concern and clarified that the first two messages were received by her on 5 February 2018 and the third on the next day. The cross examination included the following:
MR LADOPOULOS: … Did I understand correctly in saying that one of the reasons you say you are concerned – you are fearful of [Ms Lowden] – is because after you first left him with [X] he tracked you down. Is at one of the reasons you say you are fearful of him?
MOTHER: Yes.
MR LADOPOULOS: And, again, if I understood correctly, another reason you said you are fearful [Ms Lowden] is because of threats he made to you; is that correct?
MOTHER: Yes.
MR LADOPOULOS: and you say that the threats he made to you were via SMS messages; is that correct?
MOTHER: Yes. SMS and Facebook Messenger.
MR LADOPOULOS: All right. You have, through your lawyers, put into evidence before his Honour a number of documents. You’re aware of that?
MOTHER: Yes.
MR LADOPOULOS: And included in those documents are a series of SMS text messages that you received from [Ms Lowden]; is that right?
MOTHER: Yes.
MR LADOPOULOS: And have you seen the series of messages that have been put into evidence before his Honour, [Ms Lowden]? Have you seen that document?
MOTHER: Yes. Yes, I provided those evidences.
The mother was then given Exhibit A3 in the witness box.
MR LADOPOULOS: Now, it would be correct to say, [Ms Lowden], you made sure that all the important messages were included in that document; is that right?
MOTHER: Filing these documents and stacking them together is part of the jobs for my solicitors, and I provided all I could.
MR LADOPOULOS: All right. Let me ask you the question in a different way. You made sure that you gave to your solicitors all the messages that you got from [Ms Lowden] that contained threats, didn’t you.
MOTHER: Yes.
MR LADOPOULOS: One of the messages – or one of the threats that I think you referred to earlier was – I think if you go to page 16 of those documents – sorry, page 17. Have you got page 17, [Ms Lowden]?
MOTHER: Yes.
Mr Ladopoulos then clarified with the mother the dates on which the three messages were received by her – 5 and 6 February 2018 – and then the cross examination proceeded as follows:
MR LADOPOULOS: All right. Well, what I want to suggest you, [Ms Lowden], is that after the message on 5 February, the one that says:
I’m coming after little China boy. After I fuck you off, he’s next
and the one on the same day there:
you pair of fucken shit c**ts disgust me
and the one down – I’m still looking at page 17:
I still can’t believe the fucken stress you and little China boy put me and [X] through. You pair of fucken retarded c**ts are going to pay
right? What I’m suggesting to you is that all of the messages after that that you’ve included in your evidence, there are no threats in any of those messages. What you say about that?
MOTHER: Yes, because I tell him in – through the messages, saying I need time to calm down.
MR LADOPOULOS: Well, I’m not sure that that answers my question, [Ms Lowden]. I will ask it again. What I’m suggesting to you is that all of the messages received after the messages on page 17 don’t have any threats; you agree with that?
MOTHER: There were no – through the Facebook Messenger, no.
MR LADOPOULOS: I don’t follow, [Ms Lowden]. I’m going to have one more try. The messages on pages 18 through to page – the last one is on page 29 – there are no threats; you agree with that?
MOTHER: Yes. From the message received from Facebook Messenger, yes, but then there is still other SMS.
MR LADOPOULOS: Well, are these messages on pages 10 through to page 29, are they Facebook messages or SMS messages?
MOTHER: Facebook messages.
MR LADOPOULOS: Well, you haven’t given his Honour any evidence of your SMS messages, have you?
MOTHER: I did provide all the messages since 2018.
MR LADOPOULOS: All right. The message on page 17, the messages on page 17 that have the threats, they happened on 5 February and on the Tuesday just after 5 February you told his Honour; is that right?
MOTHER: Yes. Even before that.
MR LADOPOULOS: And it’s the case, isn’t it, that just before 5 February [Ms Lowden] believe that you had been having an affair with somebody in China; is that right?
MOTHER: No. I didn’t have an affair. I didn’t have a boyfriend. I didn’t know where he got this from it.
MR LADOPOULOS: Well, I’m not asking you whether you had an affair or had a boyfriend, [Ms Lowden]. I am asking you: it’s the case, isn’t it, that [Ms Lowden], he thought you had an affair. That’s right, isn’t it?
MOTHER: Yes. That’s what he thought.
MR LADOPOULOS: And he thought that just before 5 February, didn’t he.
MOTHER: No. He had these kinds of thoughts for a very long time. Even if I go to the hairdresser he thinks I have a boyfriend.
HIS HONOUR: That’s not what you were asked. You are being asked about Ms Lowden believing you had had an affair when you were in China, which occurred in early January 2018.
MOTHER: Yes.
MR LADOPOULOS: And the messages that are there just before page 17, they’re talking about him accusing you of having an affair, aren’t they?
MOTHER: Yes.
MR LADOPOULOS: Have you ever considered that maybe [Ms Lowden], when he made the threats that are there in those messages on page 17, made them at a time that he was angry because he believed you had been having an affair?
MOTHER: But then being angry is not a reason to threaten someone.
MR LADOPOULOS: And have you ever thought that maybe in the heat of his anger he made those threats, but after he calmed down he didn’t make any further threats? Is that a possibility?
MOTHER: No. No. He has been like this for a long time, so there is no such possibility.[10]
[10] Transcript 22 September 2020 page 89 to 96.
There is no evidence from the mother in the hearing of threats made to her or about her by the father other than as contained in the first and third messages under concern. The second message under concern is in no manner a threat. It is very, very strongly expressed written abuse.
The cross examination continued:
MR LADOPOULOS: You see, I’m going to suggest you that in the messages from page 18 UP TO PAGE 29, [Ms Lowden] not only doesn’t make any threats, but he informs you that he would like for you to get back together. He informs you that he would like for you to get back together. Informs you that he is prepared to pay for the car so you can have a car. He tells you at one point he had looked at some old photographs and how pretty you had looked. He has been quite nice to you in all those messages, I would suggest. What you say about that?
MOTHER: First of all, I left the home at – on 16 February, and regarding buying the car, he actually took out the mortgage and then pay off the car loan, and also he took off all our pictures hanging on the wall.
HIS HONOUR: That’s not an answer to the question. In the messages on pages 18 to 29 there are no threats. [Ms Lowden] tells you that he wants to get back together with you, that is prepared to pay for a car, that he has looked at old photos and tells you how pretty you looked. He is being nice to you, isn’t he?
MOTHER: From what we can see from the messages, yes.
During the mother’s cross examination, Mr Lawrence put to her, in reference to the father:
He has never been physically violent to you at all?
with which the mother agreed.
The mother gives no other evidence in her trial affidavit, or during her oral evidence, of threats made against her by the father or of any other form of family violence perpetrated against her by the father, of the type referred to as “violent, threatening or other behaviour by a person that … causes the family member to be fearful”.[11]
[11] Family Law Act 1975 (Cth) s 4AB(1).
I have set out the evidence relating to the threatening messages from the father to the mother in great detail, as it was the only basis upon which the mother was able to assert that at the date of the parties separation, she had reason to be fearful of the father, to be scared for herself and X, leading to her evidence that she “fled the former family home with X” as opposed to giving evidence that she left the former family home with X.
The messages from the father to the mother are threatening. They were characterised by Ms Druitt in cross examination as threats by the father to kill the mother. The father on an occasion denied that, and on a couple of occasions adopted that, and expressed his regret and described the messages as “abusive and shocking”.
Before it was asserted by Ms Druitt in cross examining the father by inclusion in her question, it was not established on the evidence that the two text messages could only be interpreted as threats by the father to kill the mother. That is not the only interpretation open on the basis of the two messages.
I find that they can be interpreted as threats of anything from some physical act such a striking against the Chinese man whom the father believed had been in an affair with the mother and against the mother, all the way through to killing.
During the cross-examination of Dr K by Mr Strik for the father, she was asked about the father’s threatening messages to the mother and she offered the following
While you’re thinking, can I just make a comment about peri-separation stress? In other words, per-traumatic stress. In the heat of separation, people are not at their best. When we are highly stressed, the blood isn’t going to our frontal lobes. That’s part of the adaptive stress response, the blood – we cease the – the blood supply goes to our long muscles so we can fight, flight, or freeze and we shut down non-essential things like sleep, food, dreaming, digestion, et cetera and the blood is taken away from the frontal lobe, the centre of higher reasoning because in an emergency you have to act on habitual programs. You can’t start holding a committee meeting in your brain.
So that is – when people are very, very stressed at the time of separation, they often do things which are emotionally driven, not rational and which – because the part of the brain that says, “hey, stop and think about this, don’t” – you know, think before you act, is turned off. So in that context, if people utter threats like “I’ll kill you, you bloody – blah blah blah”, it’s unfortunate, unwise and, if they don’t act on it, maybe atypical. However, what we are looking for, really, is not one-off events in periods of high stress but established patterns of behaviour including behaviour which is – which is cold, calculating, remorseless and self-seeking over a long period.
So if you’re saying to me am I terribly worried about that threat, if that threat wasn’t actioned and it was uttered in the context of anger about discovering infidelity or fear of loss of the relationship or whatever, I’m not too exercised about that as a predictor of future violence.
The two messages under concern, the first message on page 17 and the third message on page 17, were threatening and could cause the mother, would cause the mother, to fear some action on the part of the father to harm her. There is no evidence whatsoever that he was in any position to seek to cause harm to the male person referred to as there is no evidence that he had any clue whatsoever as to that person’s identity, that person being at all relevant times in China.
The messages constitute family violence of the type referred to in section 4AB of the Act perpetrated by the father against the mother.
However, they constitute an isolated incident occurring at a time of crisis in the parties’ relationship when, as the mother accepts, the father had just come to believe (whether it was true or not is another matter) that the mother had had an affair with a male person while she was on holiday in China in January 2018. The mother makes no such complaint of the father’s behaviour prior to those messages or at any time thereafter up to the time of the final hearing in her trial affidavit only other reference to a threat by the Father being in the CDC memorandum (Exhibit A10) where the Family Consultant notes that “The mother alleges that, in 2010, the father threatened to kill her, telling her that he would than hand himself into the police”.
The only often refer to a that by the father being in the CDC memo (ex A10) where the Family Consultant refers that the Mother … police”
I find that the messages do not represent any element of risk to the child in spending time with and communicating with his father, nor do I find that they are a basis for any reasonable or rational ongoing fear of the father by the mother after a limited number of days after their receipt, in consequence of the rest of the message chain evidence, in consequence of conduct of the parties between 6 and 16 February 2018, and in consequence of the conduct of the father subsequent to the parties separation.
The mother’s evidence during cross examination about the father coming into the room where she was sleeping or trying to sleep emerged only during cross examination. No such evidence is found in her trial affidavit. The mother does not assert in her oral evidence that the father made any movement towards her or any action that constituted a threat other than simply being present in the room, and I find that that conduct does not represent risk or provide a basis for the mother to have any ongoing fear of the father.
In a Child Dispute Conference that occurred on 20 November 2018, the family consultant notes from the interview with the mother:
The mother alleges that, in 2010, the father threatened to kill her, telling her that he would then hand himself into the police. She alleges that he commented that he should have cut the brake linings on the car of his ex-wife (with whom he has two daughters).
There is no evidence in relation to either assertion by the mother contained in her evidence in chief. It is the only mention in the case of the alleged threat to kill in 2010. The Memorandum notes that the father denied the mother’s allegation about the 2010 matter, and agreed that in the context of an argument about his former wife as a “throw away line” he made the comment about his former wife’s brake linings. On all of the evidence, the mother has at all relevant times been aware that the father has offered no violence to his former wife.
During his cross examination by Ms Druitt, the father explained his comment to the wife about “should have cut the brake linings on the car of his ex-wife” as occurring during a conversation between himself and the mother when the mother was complaining to the father about his payment of child support for his daughters and in circumstances where the mother had evinced a strong dislike of the father’s former wife.
I do not find that either comment recorded in the Child Dispute Conference Memorandum to Court represents grounds to find a risk to the child spending time with or communicating with his father or is grounds for the mother to have an ongoing fear of the father, given that both incidents are asserted by the mother to have occurred quite a number of years before the parties’ separation.
In the clinical notes of Ms D, a clinical psychologist consulted by the mother, for the mother’s session on 7 September 2018, Ms D notes:
[Ms Lowden] reported that [Ms Lowden] “threatened to kill his ex-wife ([Ms J])”.
There is no evidence given by the wife in the hearing that the father threatened to kill his former wife. The only reference outside of that clinical note is that referred to above in the Memorandum using the words “he should have”. That of itself is not a threat to kill and, if given its most serious interpretation rather than the interpretation given by the father in his evidence, it can read only as a musing on what could have been done in the past, but was not.
The mother asserts as part of her case that behaviour on the part of the father was family violence of a type that coerced or controlled her by controlling her in relation to her use of Mandarin with her family and friends and with the child, and by controlling her access to finances. I have dealt with the mother’s assertion about the father throwing out her Chinese food.
I find that the evidence of the mother in this regard does not amount to coercive and controlling conduct by the father toward the mother. I am unable to make a finding as to whether the mother or the father is correct in relation to the evidence of the father preventing the mother from using the Chinese language and teaching Mandarin to the child, the mother asserting he did and the father denying that he did and, during cross examination, asserting that he considered the child learning Mandarin to be a good idea and certainly something that would be of benefit to the child in the future.
The mother’s evidence in paragraph 119 of her affidavit on this issue contains a blanket assertion that:
[Mr Lowden] would not allow it.
without providing evidence in proper form to ground that assertion.
While the mother’s evidence contains assertions that she sought money from the father and did not receive it, it is accompanied by assertions that the father explained that he was unable to provide money because the couple could not afford it. The mother’s evidence also contains occasions when she sought money from the father and he provided it. I note the mother’s evidence in paragraph 58 of her trial affidavit, referring to the occasion of her parents visit in June 2014:
We were in financial difficulty by that time for we only had [Mr Lowden’s] one wage.
The mother gives evidence in paragraph 84 of her trial affidavit returning to work in November 2015 and:
..all my money went to groceries and all the bills … [Mr Lowden] did not give me any financial support by that time. [Mr Lowden] did pay the mortgage.
The last two sentences of the wife’s evidence are contradictory.
In paragraph 87 of her affidavit:
[X’s] christening happened [in] 2015. [Mr Lowden] and I did not have any money but roughly $200 left in his account …
This follows the mother asserting that the father spent too much of their money “on the farm” at City B.
In paragraph 113 the mother refers to her trip to China for one week in June 2017 and says:
I did not have enough money to buy the flight ticket. I asked [Mr Lowden] to help and transferred money from his defence force bank.
Even if the mother’s evidence is taken at its height, I find that it does not amount to family violence of the coercive or controlling kind. The father is not shown by that evidence to have been:
… unreasonably denying [the mother] the financial autonomy that she would otherwise have had[12]
nor:
… unreasonably withholding financial support needed to meet the reasonable living expenses of [the mother] or her child, at a time when [the mother] is entirely or predominantly dependent on [the father] for financial support[13]
nor:
preventing [the mother] from making or keeping connections with her family, friends or culture[14]
and certainly not:
… unlawfully depriving [the mother or any or any member of the mother’s family] of his or her liberty.[15]
[12] Family Law Act 1975 (Cth) s 4AB(2)(g).
[13] Family Law Act 1975 (Cth) s 4AB(2)(h).
[14] Family Law Act 1975 (Cth) s 4AB(2)(i).
[15] Family Law Act 1975 (Cth) s 4AB(2)(j).
The father’s daughters ceasing to attend at the City AB home is not consistent with the father being coercive and controlling of the mother, if anything the contrary.
The mother alleges that the father was habitually verbally abusive of her during their relationship, but other than her evidence of being told to “Fuck off” on a couple of occasions she does not present evidence of such.
I find that the mother was not the victim of family violence in the nature of coercive and controlling conduct perpetrated by the father during their cohabitation.

I find that the child has a close and loving relationship with his mother, a relationship of comfort and trust, and that she is his primary attachment figure.
I find that the child has a close and loving relationship with his father, despite the limited time they have spent together under the terms of the interim orders.
On all of the evidence I find that it is plain that the child has a close and loving relationship with his paternal grandparents who had been, with the mother and the father, an essential part of his main carer group for the first 3 ½ years of his life and a constant element in the time he has spent with his father post separation.
On the same basis, I find that the child has a relationship with his maternal grandparents and that there is no basis on which to doubt that it is a good relationship of benefit to the child, though on the evidence on hearing I am not able to assess the depth of that relationship given that the last time that he was together with them was in November 2015 when he was one year of age and his relationship with them since that time has been by way of electronic communication. That is not to in any way deny or demean the importance and value of that relationship to the child, particularly to his cultural education.
The child has a close and loving relationship with his sisters, Ms O and Ms P, and has a relationship of ease with his sisters’ mother, Ms AJ.
It is not open on the evidence to assess the nature of the relationship, if any, between the child and the father’s partner, Ms G, but there is also nothing in the evidence to indicate that an appropriate relationship cannot develop between them from her participation in the child’s time with his father.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with child, and to communicate with the child.
To a large extent the father has not had opportunity to participate in the making of decisions about major long-term issues for the child because he has not been consulted or invited in that regard by the mother.
No interim order has been made in the proceedings for the parents to have equal shared parental responsibility for the child or for either parent have sole parental responsibility. Accordingly, parental responsibility is under section 61C of the Act and each of his parents have parental responsibility for the child, which has different legal consequences to a situation of equal shared parental responsibility, as discussed by the Full Court in Goode & Goode [2006] FamCA 1346.[29]
[29] I am aware that Goode & Goode dealt primarily with interim orders, however I consider the Full Court’s discussion on the aforementioned matter to be authoritative in any event.
When the mother was cross examined by Mr Lawrence about matters going to parental responsibility her evidence was that whether or not the father should be involved in decisions about the child’s long-term welfare depended on the child’s development and she did not consider that she had to consult the father about matters such as the school to be attended by the child.
On the other hand, it is clear on the evidence, including from the cross examination the father, that he has never moved himself very much to make his enquiries about and inform himself about matters to go to the child’s long-term welfare, even to the extent of ignoring the court order that he make contact with Ms D, the clinical psychologist treating the child. In the event, the father concedes an order for sole parental responsibility to the mother.
The evidence indicates that the father has taken full opportunity to spend time with the child under the constraints of the terms of the interim orders and the dictates of his shiftwork roster. It is a very different thing in relation to the extent to which he has taken the opportunity to communicate with the child, and I accept the evidence of the mother that despite having interim orders enabling the father to have regular communication with the child he has certainly not taken advantage of those opportunities for long periods of time in the context of this child’s life. He has taken some but not all opportunity to communicate with child, though his record in this regard of more recent times has improved.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligation to maintain the child.
As submitted by Ms Druitt on behalf of the mother, “certainly both parents have met their obligations to maintain the child.” The father pays child support as assessed to the mother for the child, just as he paid child support as assessed for his daughters to his former wife. The child’s principle financial support since separation has been provided by his mother.
The likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from either of his parents.
The considerations here are any likely effects on the child of a longer separation from his mother in consequence of spending longer time with his father if the orders sought by the father and the ICL are made, and any likely effects on the child of a longer separation from his father than he has been experiencing since March 2019 if the orders sought by the mother are made.
If the orders sought by the father and the ICL are made then the child would be spending two weekends per month with his father, their placement in the month dictated by his work roster, one being from 5:30 PM on Friday to 5:30 PM on Sunday and the other being from the end of school on Friday until start of school on Monday.
From March 2019 he was spending one weekend each month from 5:30 PM on Friday to 5:30PM on Sunday with his father and 10 AM on Wednesday until 4 PM on Thursday on one or more occasions per month depending on the father’s work roster. Once she commenced school in 2020 the Wednesday evenings ceased and he continued by spending the weekend time about once each month with his father, and some periods of time of six nights during school holidays.
The mother’s case is that the time the child is in spending with his father under the interim orders made in March 2019 has had a detrimental effect on the child and that any change by way of an increase of time will either maintain or increase that detrimental effect. She does not find support for her argument that child’s time with his father should not be increased for this reason from Dr K or in the case presented by and orders proposed by the ICL.
I have found that any element of detriment to the child affecting his health (constipation), development (bedwetting) or behaviour (toward his mother and at school) as described in the mother’s evidence does not outweigh the benefit to the child of having the opportunity to spend adequate time together to maintain and develop his meaningful relationship with his father, with his sisters, and with his paternal grandparents.
Further than that, I take into account the evidence of Dr K and I find that those elements are connected more to his experience of the conflict between his parents in the past than as being a result of simply the time he spends with his father, there being no evidence that anything occurring during that time is a direct or indirect cause of those elements, and that such have been and will continue to be of decreasing occurrence, if now continuing at all, if opportunities for conflict between the parents are minimised.
A likely effect on the child of a longer separation from his mother by spending increased time with his father is that he may miss his mother, though he is well used to spending Friday to Sunday with his father and so another occasion a month, even if extended to the Monday morning at the start of school, should not cause him many difficulties.
In relation to the father’s application that the child spend time with him for half of the Term 1, 2 and 3 school holidays (7 nights), the child has become used to blocks of six nights and will have no difficulty with the single night increase.
The father’s application for the child to spend time with him during the Christmas school holidays from the end of school until the fourth Saturday of the holidays in even-numbered years and from the fourth Saturday of the holidays until the last Saturday in even-numbered years is somewhat more problematic as the period of time from the end of school until the fourth Saturday of the holidays is considerably more than half of the school holidays and amounts to 4 weeks out of a Christmas school holiday that for children attending public schools is between five weeks and four days long and five weeks and six days long, depending where Australia Day falls.
I find that for the child to be away from his mother for a period of four weeks commencing in the Christmas school holidays at the end of 2022 would have a detrimental effect upon him as he is certain to miss his mother quite badly after never having been away from her such a lengthy period of time before. If an order is to be made along the lines of that sort by the father and supported by the ICL for the father to have significant time with the child during the Christmas school holidays and I find that it would be more appropriate for it to be on a week about basis for at least two Christmas holiday periods and then on a half/half basis between the parents.
The likely effect on the child of change in circumstances by spending less time with his father than he has been spending since he commenced school at the start of 2020, as proposed in the mothers orders, would be to constrict the time available to the child and the father to maintain and develop their meaningful relationship and as a necessarily additional result drastically restrict the time available to the child to maintain and develop his relationships with his sisters and his paternal grandparents.
The making of orders as sought by the mother would reduce the child’s time with his father dramatically from his regular 48 hours, involving two overnights, per month to 6 hours, with no overnight occasions per month. During cross examination for the father, Dr K gave evidence that she considered the mother’s proposal in that regard as “ridiculous”.
In terms of all of the evidence in this matter, I agree with Dr K.
To further constrict the child’s time with his father below what it is at present would have a detrimental effect on the child by denying him the chance to adequately maintain, let alone develop, his meaningful relationship with his father and his relationship with his extended paternal family, including his relationship with his siblings, which can become increasingly important as a person’s age increases and the presence in their life of their parents decreases, or ceases.
The practical difficulty and expense of the child spending time with and communicating with his father and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is nothing in any proposal before the Court that would substantially affect the child’s right to maintain personal relations and direct contact with his mother on a regular basis.
There is a practical difficulty and expense involved in the child spending time with his father and maintaining personal relations and direct contact with his father on a regular basis consequent upon the element so often found an Australian family law cases – the tyranny of distance. The child lives with his mother in City E. The father lives with Ms G in City M, and has the ability to spend his time with the child, including overnight, both at the paternal grandparents home at Suburb V and at the father’s farm at City B, which has been largely his practice during the child’s weekend time with him.
The mother put into evidence as Exhibit A12 a Google Maps print in relation to travel time by car between the father’s farm outside City B and City E indicating a car trip of 123 km, taking 1 hour 23 minutes. She put into evidence as Exhibit A13 a Google Maps print in relation to the travel time by car between the paternal grandparents home in AK Street, Suburb V and City E indicating a car trip of 220 km taking 2 hours and 42 minutes.
Dr K was concerned about any adverse impact on the child of the necessity for extensive car travel at the start and end of his time with his father, but she was also aware that the child had an undertaking those long car trips for over a year and of the mothers statement to her, noted in paragraph 52 of the Family Report, that:
[X] has been used to long commutes since infancy and cope well with road trips, enjoying his interaction with the parent driving.
Further, as also noted in the Family Report at paragraph 44 from Dr K’s interview with the paternal grandmother, between November 2015 and February 2018 the child would travel with the mother or the mother and the father between City AB and Suburb V to enable the mother to attend a place of employment while the child was cared for by the paternal grandparents, being a trip of which I can take judicial notice as being between 50 minutes and an hour by car.
Whilst there is evidence of the child being used to car travel of the extent under consideration, there is no evidence indicating that the child has a will suffer ill effect in relation such travel. Dr K suggested that the amount of travel involved could be reduced by keeping the child’s time with the father to one full weekend, Friday to Monday, each month and providing more time in the school holidays, but that proposal is not adopted by any of the parties and is, on the evidence, not feasible in terms of the father’s work roster requirements and his availabilities for quality time with the child (even allowing for some attendance in employment) during school holiday periods extending beyond half.
There is no evidence that the expense involved in the father spending the time he seeks with the child is such a burden that it would have any effect on the child’s right to maintain personal relations and direct contact with his father and his paternal extended family.
The capacity of each of the child’s parents and any other person (including grandparents and his sisters) to provide for the needs of the child, including emotional and intellectual needs.
The only issue that needs to be examined in relation to the parental capacity of each of the parents is what Dr K identified in her Executive Summary in the Family Report as the mother being “explicitly unwilling” to facilitate the child’s relationship with the father and the mother’s aim to “marginalise the father”. Dr K’s opinion in that regard was borne out to a significant extent by the mother’s evidence in cross examination, despite her acceptance that the father was an important person in the child’s life, that there was some benefit to the child in having a relationship with his father, and that there was importance and benefit to the child in his relationship with both his paternal grandparents and his sisters.
However, as a result of these Reasons, final orders will be made in relation to the time to be spent by the child with his father, lying somewhere between the mother’s proposal for 6 hours on a Saturday once a month and a few special occasions to the father’s proposal supported by the ICL for 2 weekends of different lengths per month, half the Term 1, 2 and 3 school holidays and time varying between more than and less than one half of the Christmas school holidays.
If orders are made providing for time that is in excess of that proposed by the mother, then the mother will have to add to her parenting capacity the ability to support and facilitate the relationship between the child and his father by ensuring that the orders are complied with and that the experience of time with his father is communicated by the mother to the child as a positive not a negative. Otherwise, there is every likelihood that the matter will return to the Court and the consequences of that are presently unknown.
Otherwise, there is nothing the evidence to show other than that each parent has adequate capacity to provide for the needs of the child including his emotional and intellectual needs. It is to be hoped that the child has, and takes advantage of, the opportunity to learn Mandarin from his mother.
There is nothing in the evidence to suggest that either set of grandparents or the child sisters lack the capacity to provide for the needs of the child within the scope of what they are called upon to provide.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The child was 6 years and 6 months of age at the end of the final hearing and is now 7 years and 10 months of age, that delay between the end of the hearing and the making of final orders and delivery these Reasons being entirely my fault, and for which I apologise profoundly to the parties, their relatives, involve legal practitioners and, most of all, the child.
As I have already traversed, the child is fortunate to have parents from two cultural backgrounds, Australian and Chinese, and I find that it is very much in the child’s best interests that he has as much opportunity as possible to be involved with and learn about each of his cultural backgrounds, and more particularly his Chinese cultural background, as his exposure to his father’s lifestyle, culture and traditions is a day to day experience in his urban Australian environment.
The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents.
Other than their lapses between February and April 2018 detailed earlier in these Reasons, each of the parents has demonstrated an appropriate attitude the responsibilities of parenthood.
Any family violence involving the child or a member of the child’s family.
I have already made the relevant findings in relation to family violence. I have found that the father perpetrated family violence against the mother by reason of the 2 threatening text messages of 5 and 6 February 2018. I have not found any other instance of family violence. I find that the family violence I have found occurred does not have a bearing on my determination of the parenting orders in relation to the time to be spent between the child and his father proper to be made in the best interests of the child with those interests as the paramount consideration.
Much of the mother’s case revolved around allegations that the father had perpetrated family violence on a consistent basis and of varying types, but not amounting to physical acts of violence. Except in relation to the threatening messages I have not accepted mother’s case in that regard.
Any family violence orders.
There be no family violence orders in relation to the child or a member of the child’s family. The clinical notes of Ms D in relation to her consultation with the mother on 1 March 2019 (Exhibit A8) note that:
[Ms Lowden] reported that she took an AVO against [Ms Lowden], when the police were in the process of returning [X] to her care. She reported that, as far as she is aware, [Ms Lowden] had an AVO taken against him, by colleagues, in 2013.
No evidence is presented in the mother’s case, or in the matter at all, to support the contention noted by Ms D as having been made by the mother.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is almost certainly inherent in the orders sought by the mother that there would be further proceedings in relation to the child. Even were it considered that 6 hours on a Saturday once a month was adequate time between the child and his father at the present time, it is a matter that would certainly have to be revisited as the child grew older – even the mother in her evidence in cross examination was explicit to say that the father’s time would necessarily increase and encompass overnight occasions as the child “developed” and grew older.

Given the attitude to the relationship between the child and his father demonstrated by the mother, it is by no means certain, in fact it is unlikely, that increases in time would be negotiated on a voluntary basis between the parents.
Accordingly, the orders most likely to lead to the institution of further proceedings in relation the child of those proposed by the mother. It is preferable not to make orders that will lead to the institution of further proceedings, as the principal in In the marriage of Rice & Asplund [1978] FamCA 84 indicates.
Parental responsibility
By the end of the hearing, it was a consent position that a final order would be made in terms of order 1 on the ICL’s Partial Minute of Orders, providing for the mother to have sole parental responsibility for the child and requiring that she notify the father of any proposed decision relating to the long-term-care and welfare of the child and take into consideration any views expressed by the father, that the father is permitted to contact the child’s school and authorise a nominee to collect the child from school in accordance with the father’s proposed order 5 for the purpose of the child spend time with the father, and that unless the parties otherwise agree in writing, the mother is restrained from changing the child’s surname and from relocating the child’s residence and school enrolment to any area more than 150 kilometres driving distance from City B NSW.
Section 61DA requires that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged an abuse of the child or family violence, and where the presumption does apply it may be rebutted by evidence to satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. Despite the consent position it is still incumbent on the court in following the legislative pathway to consider the presumption in section 61DA in case it is in the best interests of the child to make an order relating to parental responsibility that differs from the consent position of the parties and ICL.
In this matter the presumption does not apply in consequence of my finding that the father has engaged in family violence.
With the presumption not applying, I must decide what order in relation to parental responsibility is proper to be made in the best interests of the child with those interests as the paramount consideration, and I accept the consent position of the parties as being the proper order in that regard.
I will make order 1 as proposed in the ICL’s Partial Minute of Orders with the addition to 1(c)(ii) in the appropriate place of the words “or school enrolment”.
What orders should be made in relation to the time to be spent by the child with the father?
As I will not make an order that the child’s parents have equal shared parental responsibility for them I do not need to give attention to section 65DAA of the Act.
In view of the findings I have made in considering the Primary and Additional Considerations in section 60CC of the Act and my analysis of the evidence, I find that the orders sought by the mother in relation to the time to be spent by the child with the father are not in the best interests of the child as they provide what I regard as drastically inadequate time in all of the circumstances for even the maintenance, let alone the development, of a meaningful relationship between the father and the child, let alone between the child and the other members of his extended paternal family, including his now adult sisters.
I accept the case presented by the father that the time he proposes is, in all the circumstances, proper in the child’s best interests on the basis that the phrasing of his order 3.1 is altered to that proposed by the ICL in the ICL’s Partial Minute of Orders to more accurately reflect the constraints on the father represented by his work roster and with the necessary addition of order 4A proposed by the ICL so that the father’s work roster is available to the mother to enable her to accurately forecast occasions of the times the child will be with the father under order 3.1.
In relation to school holiday time I find that the proposal of the father in relation to the school holidays at the end of Terms 1, 2 and 3 is an order proper to be made in the child’s best interests, but not the order proposed by the father at 3.2.2 and 3.3.2 in relation to the Christmas school holidays as it involves the father having two thirds of the Christmas school holidays in even years and one third of the Christmas school holidays in odd years (the same in reverse for the mother), and I find that the appropriate arrangement is that the Christmas school holidays be shared equally between the parents, on a week about basis for the Christmas holidays at the end of 2022 and 2023 and thereafter an equal basis with a changeover in the middle of the Christmas school holidays.
How do my findings in relation to the appropriate time to be spent between the child and the father accord with the imperative expressed by Dr K that the child be shielded as much as possible from being exposed to parental conflict? It is just not possible to eliminate all occasions when the parents will be in the same place at the same time to affect a changeover due to the realities of the tyranny of distance between the mother and child’s place of residence and those places where the father and spend time with the child. It can only be ameliorated by the making of the order accepted by the mother in the ICL’s order 1 (b) allowing the father to authorise a nominee to collect the child from school and the making of order 5 as sought by the father enabling him to have a nominee attend changeovers not occurring at child’s school, and by the making of orders in line with the injunctive orders sought in order 8 by the mother, the mandatory injunctive order in order 6 as sought by the father and the injunctive orders 11.2 and 11.3 as sought by the father in his order 11. I also consider it appropriate to make an order in terms of Dr K recommendation at paragraph 61 of the Family Report that the parents join Our Family Wizard and use it routinely, instead of order 13 as sought by the father.
In relation to the travelling time for the child to be returned to school by the father or by someone on his behalf on a Monday morning, I note the evidence in the mother’s Exhibit A12 that the travelling time from the father’s farm at City B to City E is 1 hour and 23 minutes, mainly by freeway, and that it will occur only once each month during school term time.
Consideration of the balance of the orders sought
Both parties seek orders enabling each of the parties to travel overseas with the child, the mother seeking orders in her minute of orders (Exhibit A9) tendered into evidence during the hearing in the same terms as those sought by the father in his Further Amended Response filed 14 September 2020 except in relation to possession of the child’s passport when not travelling, and Ms Druitt indicated during final submissions the mother’s consent to the travel orders sought by the father except for the possession of passport orders.
During final submissions for the father, Mr Strik advised the court that the father altered his proposed orders in relation to the obtaining of a passport for the child, and by implication in relation to when he would be able to travel outside Australia with either parent, from six years of age, as sought in his Further Amended Response, to 13 years of age. However, no evidence was presented in the father’s case to provide a basis for that restriction and I find that, both parents and the ICL having agreed the child can travel overseas with either parent, the father only being at odds with the mother and ICL as to age, there is no basis in the child’s interests to delay that opportunity until he is 13.
In particular, I note that there is no evidence as to why the proper age is 13 – why not 15 or 10 or his current age?
I consider that the orders relating to travel as sought by each of the parties are in the child’s best interest and I will make those orders.
In relation to possession of the child’s passport when not travelling, in consequence of the leave under section 65Y orders that I will make, the father’s reasons for seeking his orders that he have possession of the child’s passport when not travelling no longer apply and I consider that in view of my finding that I will make the order providing for the mother to have sole parental responsibility for the child it is more appropriate that she retain the child’s passport when not travelling and that therefore I will make orders 20 and 21 as sought by the mother.
The mother seeks an order that all changeovers occur at the Location C at City B and that the father and the mother themselves personally attend. However, Ms Druitt advised the Court in final submissions that the mother consented to order 1 as proposed by the ICL and that order includes:
[b] That the father is permitted to … authorise a nominee to collect the child from school (in accordance with Order 5 below) for the purposes of the child spending time with the father as provided for by Order 3;
The father seeks in his order 5 that either parent be able to send a “nominee known to the Child” to changeovers.
I find that the orders advanced by the mother in her evidence in cross examination for seeking an order that the father attend personally upon changeovers are not founded on the child’s best interest or even the mother’s best interest, but are contrary to the child’s best interests in consequence of matters going to the distances involved and particularly the distances involved combined with the commencement and conclusion times involved.
Accordingly, I will make order 5 as sought by the father for changeovers to be effected by the parties or their nominees known to the child at the Location C at City B when not occurring at the child’s school. As I have indicated earlier, the protection of the child from exposure to parental conflict on the occasions when both parents are presented at changeover at the Location C are the injunctive orders that I have indicated I will make as sought by the parties and the ICL, including the mandatory injunction in order 6 sought by the father.
Order 6 as sought by the mother and order 7 as sought by the father are basically the same in wording except for the extra words at the end of the father’s order “and visit the child hospitalised” and on that basis I regard the order as sought by the father as the proper order to be made.
Order 9 as sought by the mother is in the same terms as order 8 sought by the father in relation to the father receiving information in relation about the child’s school and education and I will make that order.
Order 7 as sought by the mother in relation to each parent being advised of and able to attend any specialist medical appointments for the child is in the same terms as order 9 as sought by the father and supported by the ICL and I will make that order, my reservations about that order linked to the opportunity for parental conflict being overcome by the orders that I will make by way of injunctions as discussed above.
I decline to make order 10 as sought by the father relating to both parents being able to attend at sporting functions or lessons and extracurricular activities that allow for parental attendance or participation – too many occasions of the parents being in the same place at the same time for extended periods of time, unlike normal changeovers – but I will make that order in relation to school functions and events that allow for parental attendance or participation, with the same consideration as expressed in the last paragraph.
Order 10 sought by the mother requires that the parties keep each other informed that the contact telephone number and advise any change within 24 hours, while order 12 as sought by the father requires that the parties keep each other informed of their contact and residential address details. The mother seeks to keep her residential address confidential from the father in consequence of her fears. I found that the mother was entitled to regard the 2 threatening messages of 5 and 6 February 2018 as threats to kill and on that basis I will make the order as sought by the mother.
I make the orders as set out at the beginning of these Reasons.

I certify that the preceding four hundred and twenty-nine (429) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 25 August 2022

File number(s):	WOC 355 of 2018
Judgment of:	JUDGE MORLEY
Date of judgment:	25 August 2022
Catchwords:	FAMILY LAW – Parenting – final orders – consent on parental responsibility – allegations of family violence – Court makes findings as to family violence in text messages – consideration of legislative pathway – Court not satisfied father presents risk to the child – mother’s spend time with application described as “ridiculous” by expert – spend time with orders made for time with father – discrete issue as to child’s passport – orders made for mother to hold passport.
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Victims Rights and Support Act 2013 (NSW)
Cases cited:	A & A & The Child Representative [1998] FamCA 25 Briginshawv Briginshaw (1938) 60 CLR 336 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346 Harridge and Anor & Harridge and Anor [2010] FamCA 445 In the marriage of Rice & Asplund [1978] FamCA 84 Johnson & Page [2007] FamCA 1235 KB & TC [2005] FamCA 458 M & M (1988) 166 CLR 69 M & S [2007] FLC 93-313 M v M (1988) 166 CLR 69 Mazorski & Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 McGregor & McGregor [2012] FamCAFC 69 Napier & Hepburn [2006] FamCA 1316 Tait & Densmore [2007] FamCA 1383 W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division:	Division 2 Family Law
Number of paragraphs:	429
Date of hearing:	21 – 23 September 2020, 29 – 30 March 2021
Place:	Sydney
Counsel for the Applicant:	Ms Druitt
Solicitor for the Applicant:	MDV Family Lawyers
Solicitor for the Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Ladopoulos
Solicitor for the Independent Children's Lawyer:	John Spence & Associates

WOC 355 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS LOWDEN Applicant
AND:	MR LOWDEN Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	JUDGE MORLEY
DATE OF ORDER:	25 august 2022