Rowe & Osborne - [2022] FedCFamC2F 1072

Federal Circuit and Family Court of Australia
(DIVISION 2)
Rowe & Osborne [2022] FedCFamC2F 1072

File number(s): SYC 1714 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 16 August 2022

Catchwords: FAMILY LAW – parenting – application for final orders – Father seeks graduated increase of time with child – Mother seeks different graduated time – Mother seeks sole parental responsibility – Father seeks equal shared parental responsibility – Mother seeks change of child’s surname – where substantial and significant time with the Father, equal shared parental responsibility and hyphenating the child’s surname is in the best interests of the child

Legislation:
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65Y and 65Z

Births Deaths and Marriages Registration Act 1999 (NSW) s22

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

Beach and Semmler (1979) FLC 90-692

Chapman & Palmer (1978) FLC 90-510

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

G & C [2006] FamCA 994

Godfrey & Sanders (2007) FamCA 102

Grella & Jamieson [2017] FamCAFC 21

Johnson & Page [2007] FamCA 1235

Lysons & Lysons (2019) FamCAFC 29

M v M (1988) 166 CLR 69

Mahony & McKenzie (1993) FLC 92-408

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Napier & Hepburn [2006] FamCA 1316

Reagan & Orton (2016) FamCA 330

Tinley & Colton [2020] FamCA 1015

Division: Division 2 Family Law

Number of paragraphs: 241

Date of hearing: 17, 18, 19 May 2021

Place: Sydney

The Applicant: The Applicant on his own behalf

Counsel for the Respondent: Mr Apelbaum

Solicitor for the Respondent: Clayhills Escobar Solicitors

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
ORDERS

SYC 1714 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ROWE

Applicant

AND:
MS OSBORNE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

16 AUGUST 2022

THE COURT ORDERS THAT:
1.That the parties (“parents”) have equal shared parental responsibility for the child X ROWE born in 2014, to be known upon the making of these orders as X OSBORNE-ROWE born in 2014 (“the child”).
2.That the child live with his Mother.
3.That the child spend time with his Father as follows:
(a)From 10:00AM on Saturday until 5:00PM on Sunday on the weekends of 20 and 21 August 2022, 3 and 4 September 2022, 17 and 18 September 2022, 1 and 2 October 2022 and 15 and 16 October 2022;
(b)From the end of school (or 3:00PM if not a school day) on Friday until 5:00PM on Sunday on the weekends beginning 28 October 2022, 11 November 2022, 25 November 2022 and 9 December 2022;
(c)From 2:00PM on 25 December 2022 until 5:00PM on 28 December 2022, from 2:00PM on 8 January 2023 until 5:00PM on 11 January 2023 and from 2:00PM on 22 January 2023 until 5:00PM on 25 January 2023;
(d)From 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.

Continue reading Rowe & Osborne

Details

AGLC: Rowe & Osborne [2022] FedCFamC2F 1072
Case: [2022] FedCFamC2F 1072
Decision Date

CaseChat Overview and Summary

The final parenting case of Rowe & Osborne [2022] FedCFamC2F 1072 involved proceedings between the father, Mr Rowe, and the mother, Ms Osborne, regarding their son X, born in 2014. The parents never married and separated when X was either three or five months old. The mother has been X's primary carer throughout his life. The father sought orders that he spend time with X on weekends and during school holidays, that the parties share parental responsibility, and that X's surname be changed to Rowe. The mother sought that she have sole parental responsibility for X, that X live with her, and that X's surname be changed to Osborne. The court considered the evidence and found that it was in X's best interests that he have a meaningful relationship with both parents, that he spend substantial and significant time with each of them, that his surname be hyphenated as Osborne-Rowe, and that both parents have equal shared parental responsibility. The court made orders providing for X to spend time with his father on weekends and during school holidays, for his surname to be Osborne-Rowe, and for the parents to have equal shared parental responsibility for him.

Orders