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Lowden & Lowden

Lowden & Lowden

Case [2022] FedCFamC2F 1138 25 August 2022

Parental Responsibility

Spend Time

Family Violence

Best Interests of the Child

Family Law

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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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Lowden & Lowden [2022] FedCFamC2F 1138
Case: [2022] FedCFamC2F 1138
Decision Date

CaseChat Overview and Summary

This case involves a final hearing of parenting proceedings between Ms Lowden, the mother, and Mr Lowden, the father, of one child, X, born in 2014. The primary issues were the amount of time the child should spend with his father and which parent should retain possession of the child’s Australian passport. The mother sought sole parental responsibility, while the father sought equal shared parental responsibility. The Independent Children's Lawyer supported the mother having sole parental responsibility with some modifications. The court found that the father had perpetrated family violence against the mother by sending threatening text messages, but these incidents were isolated and did not pose a risk to the child. The court determined that it was in the child's best interest to spend more time with his father, and orders were made accordingly. The court also found that the mother should retain possession of the child's passport when not travelling.

Orders