Lowell and Jordan - [2017] FamCA 180

FAMILY COURT OF AUSTRALIA

LOWELL & JORDAN

[2017] FamCA 180

FAMILY LAW – CHILDREN – PARENTING – Where substantive parenting orders have been made – Where only discrete issues left for determination – Where there are accusations of sexual abuse by the paternal grandmother – Where the mother proposes the paternal grandmother’s time with the child be in the presence of another adult indefinitely – Where the mother proposes an order for care of the child when one parent is not available – Where the parents propose the child’s surname be hyphenated – Where the parents cannot agree on the order of the surnames – Where the paternal grandmother does not pose an unacceptable risk of harm to the child – Where the orders sought by the mother are impractical – Where the child’s surname should be hyphenated – Application for orders sought by the mother is dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Briginshaw v Briginshaw (1938) 60 CLR 336
Flanagan v Handcock (2000) 27 Fam LR 615
In the Marriage of Beach and Stemmler (1979) FLC 90-692
In the Marriage of Chapman and Palmer (1978) FLC 90-510
In the Marriage of George and Radford (1976) FLC 90-060
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Malmo & Hartigan [2010] FAMCA 1182
Reynolds and Sherman [2016] FamCAFC 240

APPLICANT:

Mr Lowell

RESPONDENT:

Ms Jordan

INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

FILE NUMBER:

PAC

2289

2013

DATE DELIVERED:

24 March 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

8 & 9 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Leslie Hargrave Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Baker Solicitor

Orders

That both parties do all things and sign all documents necessary to change the surname of the child B Lowell born … 2012 to ‘Jordan-Lowell’ with the Registry of Births Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the child and that pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form specified above.
Order 2 of the Orders of 5 September 2016 is discharged.
That all other outstanding Parenting Applications in relation to the child be dismissed.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] FamCA 180
Decision Date: 24 March 2017

CaseChat Overview and Summary

In the matter of Lowell and Jordan, Hannam J of the Supreme Court of New South Wales was required to determine an application concerning the surname of a child, B Lowell, born in 2012. The dispute centred on whether the child's surname should be changed.

The primary legal issue before the Court was the appropriate surname for the child, B Lowell. This involved considering the relevant provisions of the *Births Deaths and Marriages Registration Act 1995* (NSW), specifically section 28(5), which pertains to the registration of a child's name. The Court also had to address the dismissal of other outstanding parenting applications.

Hannam J ordered that both parties take all necessary steps to change the child's surname to 'Jordan-Lowell' and that the Registrar of Births, Deaths and Marriages register the name in this form, pursuant to section 28(5) of the *Births Deaths and Marriages Registration Act 1995* (NSW). The Court also discharged a previous order made on 5 September 2016 and dismissed all other outstanding parenting applications in relation to the child. Further, the Court included particulars of obligations, consequences of contravention, and assistance for compliance within the orders, as permitted by sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

That both parties do all things and sign all documents necessary to change the surname of the child B Lowell born … 2012 to ‘Jordan-Lowell’ with the Registry of Births Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the child and that pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form specified above.

Order 2 of the Orders of 5 September 2016 is discharged.

That all other outstanding Parenting Applications in relation to the child be dismissed.

Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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