Lowe v Lowe

The applicant, Elizabeth Dorothea Edith Lowe, sought special leave to appeal to the High Court of Australia against a decision of the Full Court of the Family Court. The dispute concerned the husband's application for custody of the parties' five children, which was heard by a trial judge of the Family Court. This application was made notwithstanding a previous consent order granting custody to the wife.

The central legal issue before the High Court was the correctness of the trial judge's procedure in determining the husband's custody application. Specifically, the court had to consider whether the trial judge appropriately addressed the threshold question of whether there had been a sufficient change in circumstances since the consent order to warrant a review of the custodial arrangements. The husband's application alleged a change in the older children's attitude towards him, the wife's failure to facilitate access, inadequate discipline, and concerning sexual interactions between the children and the wife.

The trial judge, after hearing initial evidence, raised the "liminal issue" of changed circumstances. He then heard evidence from counsellors, including one who had seen both parties and the children, and a court counsellor. The judge offered the husband's counsel the opportunity to cross-examine the wife on this threshold question, but this offer was declined. The trial judge ultimately found that while the older children's attitude had changed, this was not demonstrably due to the wife's default. He concluded that the husband's allegations amounted to mere criticisms of the wife's conduct and did not justify altering the custody arrangements, although he noted the regrettable possibility of disaffection in the younger children if the parental stalemate continued.