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Trower & Kirwan

Trower & Kirwan

Case [2022] FedCFamC2F 1230 16 September 2022

Child’s Best Interest

Independent Children’s Lawyer

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Trower & Kirwan [2022] FedCFamC2F 1230

File number(s): ADC 1075 of 2014

Judgment of: JUDGE BROWN

Date of judgment: 16 September 2022

Catchwords: FAMILY LAW – Parenting – application by father to resume time spending against child’s wishes – child aged 14/½ years – high conflict over many years between parents – mother has failed to take part in proceedings – orders made by consent in May 2017 – application by Independent Children’s Lawyer to summarily dismiss fathers application – child refuses to spend time with father – consideration of weight to be given to wishes expressed by child – child’s best interest – matters to be considered – no reasonable prospects of success – application dismissed

Legislation:
Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 4AB, 45A, 60CA, 60CC, 62G 68L, 68LA, 69ZN, 69ZQ, 91B

Federal Circuit and Family Court of Australia Act 2021 s 67

Federal Court Act 1976 (Cth) s 31A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 s 1.04

Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)

Cases cited:
Aon Risk Management Limited v Australian National University (2009) 239 CLR 175

Australian Securities and Investment Commission v Cassimatis (2013) 220 FCR 256

H v W (1995) 18 Fam LR 788

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409

Przbylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

R & R: Children’s Wishes (2000) 25 Fam LR 712

Riva NSW Ltd v Official Trustee in Bankruptcy [2017] FCA 188

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Stativa & Stativa [2015] FamCAFC 170

Trower & Kirwan [2015] FCCA 2491

Division: Division 2 Family Law

Number of paragraphs: 168

Date of hearing: 2 September 2022

Place: Adelaide

Counsel for the Applicant: Mr Lipari

Solicitor for the Applicant: Matthew Mitchell

Solicitor for the Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Ms Boyle

Solicitor for the Independent Children’s Lawyer: Legal Services Commissions of South Australia
ORDERS

ADC 1075 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TROWER

Applicant

AND:
MR KIRWAN

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE BROWN

DATE OF ORDER:

16 September 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Initiating Application filed 2 December 2020 is dismissed pursuant to Rule 10.09(1)(d) of the Federal Circuit and Family Court (Family Law) Rules 2021.
3.The child X born in 2008 (“the child”) live with the mother.
4.The child spend time and communicate with the father subject to her wishes.
5.The father be at liberty to obtain copies of the child’s school academic reports, newsletters and photographs at his own expense.
6.The mother shall keep the father notified in writing of the name and contact details of the school that the child attends.
7.The mother keep the father advised of 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 Trower & Kirwan

Details

AGLC: Trower & Kirwan [2022] FedCFamC2F 1230
Case: [2022] FedCFamC2F 1230
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by Mr Kirwan, the father, for a change in the existing parenting arrangements for his daughter X, born in 2008. The mother, Ms Trower, had not participated in the proceedings since October 2021. The Independent Children’s Lawyer, Ms Kneebone, applied to summarily dismiss the father’s application. The father sought final and interim orders that X live with him and he have sole parental responsibility for her. The ICL, however, sought orders that X live with her mother, and spend time with her father, only as she wishes. The court was required to determine whether Mr Kirwan’s application should be summarily dismissed, and what orders should be made in respect of the child’s parenting arrangements. The court considered the evidence and submissions and concluded that the application should be dismissed and that X should live with her mother and spend time with her father only as she wishes. The reasoning of the court was that X was a mature 14-year-old who had consistently expressed her unwillingness to have any contact with her father. The court accepted that, given X’s age and maturity, her wishes ought to be given significant weight. In addition, it was evident from the evidence that any attempt at therapeutic intervention involving X and her father would be futile. The court further considered that compelling Ms Trower to engage in the case would likely fracture X’s relationship with her father and serve no useful purpose. The final orders made by the court were that X live with her mother, and spend time and communicate with her father subject to her wishes. The father was also granted the right to obtain copies of the child’s school academic reports, newsletters, and photographs at his own expense. The mother was required to keep the father notified in writing of the name and contact details of the school that the child attends, keep the father advised of the child’s current residential address and contact telephone details, and notify the father in the event of a medical emergency involving the child. The father was also granted the right to send cards and gifts to the child on her birthday and Christmas with the mother to ensure the child receives the same. The parties were restrained from abusing, denigrating, or rebuking the other in the presence or hearing of the child or from permitting any other person to do so or discussing these proceedings with the child or in the presence or hearing of the child or from permitting any other person to do so.

Orders