Chandler & Bonner
[2022] FedCFamC1A 210
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Chandler & Bonner [2022] FedCFamC1A 210
Appeal from: Order dated 19 August 2022 Appeal number(s): NAA 203 of 2022 File number(s): PTW 1724 of 2021 Judgment of: TREE J Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellants appeal from interim orders allowing the respondent to spend supervised time with the children – Whether the primary magistrate failed to apply relevant principles – Where neither s 43 nor s 69ZN of the Family Law Act 1975 (Cth) operate to displace the paramountcy of children’s best interests – Whether the primary magistrate failed to address relevant factors under s 60CC of the Act – Whether the primary magistrate failed to give adequate reasons – Weight challenges – Where it is not necessary that a trial judge mention every fact or argument relied on by the losing party as relevant to an issue – Where no ground of appeal succeeds – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 4AB, 43, 60CA, 60CC, 69ZN Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bonner & Chandler (2021) FLC 94-063; [2021] FedCFamC1A 81
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 66 Date of hearing: 8 December 2022 Place: Cairns (via video link) The First Appellant: Self-represented litigant The Second Appellant: Self-represented litigant Counsel for the Respondent: Ms Anderson Solicitor for the Respondent: FMD Legal Pty Ltd ORDERS
NAA 203 of 2022
PTW 1724 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CHANDLER
First Appellant
MS CHANDLER
Second Appellant
AND: MS BONNER
Respondent
order made by:
TREE J
DATE OF ORDER:
14 december 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chandler & Bonner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
On 19 August 2022, interim parenting orders were made by the Magistrates Court of Western Australia in proceedings between the appellant mother and father (“the parents”) and the respondent maternal grandmother (“the grandmother”), concerning the parents’ four children. Those orders provide for the grandmother to spend professionally supervised time with the children for three hours twice per month, although not during school holidays, on special occasions, or if in conflict with the children’s sporting or extracurricular activities. The parents appeal from those orders.
On 8 December 2022, I heard the appeal and reserved my decision. For the reasons that follow, the appeal will be dismissed.
background
The parents, whose marriage is intact, live with the children, who are aged between 13 and 6 years.
The grandmother’s relationship with the mother has deteriorated over the years. It appears that led to the children ceasing to regularly see the grandmother in about February 2018.
In March 2021, the grandmother initiated proceedings seeking orders that she be able to spend time with the children. On the first occasion those proceedings came before the Court, orders were made for the children to spend limited supervised time with the grandmother until her interim application could be heard and determined.
Following those orders, only three supervised visits occurred, for reasons which the parties do not agree upon.
On 3 August 2021, the parties’ competing interim applications were heard, and on 12 August 2021, a magistrate made orders dismissing the grandmother’s interim application to spend time with the children.
The grandmother subsequently appealed those orders, which appeal partly succeeded, with some of the relevant orders being set aside and parts of the parties’ interim applications remitted for rehearing by another magistrate (Bonner & Chandler (2021) FLC 94-063).
On 21 July 2022, the primary magistrate conducted that rehearing. On 19 August 2022 his Honour delivered oral reasons for the orders outlined above, such that the transcript of them comprises the only reasons for judgment. From those orders the parents now appeal.
the appeal
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The parents argued four grounds of appeal which will be discussed in turn.
Ground 1
The first ground contends as follows:
1.The learned Magistrate erred in law by applying the wrong principles in determining the appellant's application, and in particular:
(a)failed to consider and make findings in relation to the impact on the appellants and the family unit of any orders including spending time with the grandmother Applicant, in face of the parent's opposition to it, and the reasons expressed for that opposition.
(b)failed to consider how any impact on the parents as the primary caregivers would impact the children and whether that is in their best interests.
Although the particulars subjoined to this ground do not appear to in fact complain of the application of wrong principles, as argued the parents contended that the primary magistrate failed to apply the principles articulated in ss 43 and 69ZN of the Family Law Act 1975 (Cth) (“the Act”) as well as the considerations listed in s 60CC(2) and (3) of the Act.
Section 43 of the Act provides:
PRINCIPLES TO BE APPLIED BY COURTS
43(1)A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to:
(a)the need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life;
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c)the need to protect the rights of children and to promote their welfare;
(ca)the need to ensure protection from family violence; and
(d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
…
S 69ZN of the Act reads:
PRINCIPLES FOR CONDUCTING CHILD-RELATED PROCEEDINGS
Application of the principles
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
By reference to s 43, it was said that the fact that the parents’ marriage is intact required some protection and assistance of it and their family (see for example, paragraph 40 of the parents’ Summary of Argument filed 10 November 2022). This is somewhat of an evolution of a theme which they advanced in the first appeal before Austin J. In dealing with that argument, his Honour said:
23.The Full Court has repeatedly affirmed that, in child-related proceedings, the parents of the subject children do not enjoy superiority over any other person who is keenly interested in the children’s welfare, though the status of parenthood does require careful consideration in the application of s 60CC of the Act because some factors pertain only to parents (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra at [42]–[43]; Aldridge & Keaton (2009) FLC 93-421 at [42]–[61], [75]–[81] and [83]).
Plainly neither s 43 nor s 69ZN of the Act operate to displace the paramountcy of children’s best interests established by s 60CA of the Act, nor the considerations (and weight to be given to them) which s 60CC requires to be taken into account in determining those best interests. Rather, as the section headings of both s 43 and s 69ZN suggest, they respectively articulate general principles to which regard must be had in all proceedings under the Act (s 43) and to which effect must be given in conducting child-related proceedings (s 69ZN).
Interesting issues are thrown up by s 43 including what the (undefined) term “family” means (see for example the definition of family violence in s 4AB of the Act, which in turn refers to the again undefined term “family member”). It is also unclear exactly what the vague phrase “widest possible protection and assistance to the family” means. Is it the family as a generic concept, given the subsection goes on to refer to it as “the natural and fundamental group unit of society”, or is it intended that it applies to each and every individual family that comes before the courts?
Fortunately, those questions can await another day, as no matter what the section requires, even though he made no reference to them, the primary magistrate did not implicitly disregard either s 43 or s 69ZN of the Act. That is because he expressly considered the potential impact on the parents and the children of time with the grandmother resuming, and therefore implicitly recognised the desirability of minimising that impact, if that could be done consistently with the children’s best interests. That is notwithstanding his statement that if he had “not referred to one of the considerations as set out in the legislation, that doesn’t mean I haven’t considered it, but rather I have taken the view that it is not relevant” (Transcript 19 August 2022, p.16 lines 29-32). I say that because that statement was made at the end of his Honour’s traverse of the s 60CC considerations, and should be taken as restricted to those considerations only.
For example, the primary magistrate said:
The issue is what the effect may be on the children of being separated from their parents if they go to see their grandmother.
Again, the evidence is conflicting; the children, it’s alleged, have said to their parents on occasion they don’t want to go. What the effect would be of the parents compelling the children to go against their wishes I cannot determine on the evidence before me.
I would be concerned if there were to be a negative impact on the children doing something which they potentially didn’t enjoy or didn’t want to do; again, the evidence is conflicting.
(Transcript 19 August 2022, p.15 lines 24-37)
Later, his Honour continued:
The Court also has to have regard to minimising any potential impact on the children’s relationship with their parents and each other if they were to see their grandmother.
…
It would have been informative to have some more detailed independent evidence of the children’s views and their perception of their relationship with their grandmother before making this determination.
However, in the absence of such evidence, the Court, in my view, has to proceed with some degree of caution, to minimise any unnecessary disruption to the children’s lives and any emotional upset for them.
(Transcript 19 August 2022, p.17 lines 22-49)
Obviously the primary magistrate therefore did precisely what sub-ground (a) contends he did not, although the state of the evidence precluded any positive finding being made.
Insofar as it was sought to be argued under this ground that the impact on the parties’ marriage of the resumption of time was a mandatory consideration, a fundamental difficulty for the parents is that there was no direct evidence that, if that occurred, to use the language of s 43 (and assuming it has direct application to every individual, although only nuclear, family before the court) their marriage needed protection or that the family needed protection or assistance. Indeed, even in their Summary of Argument, the parents only contended that “[i]t can be inferred without further evidence that the parents would be distressed to again send their children to ordered visits again against the parents’ wishes where they have outlined throughout their affidavits their concerns about potential harm, [and] their expressions that the children were distressed and did not want to go” (at paragraph 39).
At the hearing before the primary judge there were assertions in the parents’ material (particularly their respective Notices of Risk, case outlines, and their counsel’s oral submissions) that, given the grandmother’s alleged conduct in the past, they would be stressed if the children spent time with the grandmother, but there is no reason to think the primary magistrate failed to have regard to that, especially given the passages of the reasons recited above.
Moreover, it cannot be overlooked that the time the children were to spend with the grandmother was sparse, suspended during school holidays and special occasions (Order 7) or if in conflict with a sporting or extracurricular activity (Order 5) and more, denigration of a party, or discussing the proceedings in the presence of the children was prohibited (Order 8). As I shall shortly detail, enforcing those prohibitions was the main reason for the grandmother’s time with the children being supervised.
As to the allegation that the primary magistrate “made orders conflicting with … s 60CC” of the Act, the parents’ contention is opaque, as plainly the primary magistrate did generally address the relevant considerations contained in that section.
Ground 1 fails
Ground 2
Ground 2 is in the following terms:
2.The learned Magistrate erred in fact and law in concluding “on balance” that it is in the children's best interests to see the grandmother Applicant in circumstances where the learned Magistrate:
(a)did not establish that the children's lives would benefit from having a relationship with the Applicant grandmother;
(b)did not establish that the grandmother was significant to the children's care, welfare and development.
(c) did not take into account relevant considerations, namely:
(i)the impact of changes (other than separation) in the children's arrangements
(ii)whether the appellant's forced re-introduction to and continuing engagement with the children is liable to have any deleterious emotional affect upon them
(iii)the children are each happy, healthy and making sound academic progress in the parents' care despite the grandmother's limited involvement in their lives
(iv)the parents view regarding whether the children should spend time with their grandmother
(v)the impact that the conduct of the proceedings would have on the children
(d)failed to make any inference or findings on relevant considerations, namely:
(i)the children's relationship with their grandmother, given it is uncontended that she has had little involvement in their life since at least February 2018.
(ii)the impact of spend time Orders on the parents on the face of their strong opposition to it
(e)provided inadequate, or any, reasons, how the learned Magistrate weighed as to why the children should spend time with their grandmother noting that he considered:
(i)the parties' negative attitude to each other;
(ii)potential impact on the emotional welfare of the children; and,
(iii)the children's happy and settled relationship with the parents; for the children to spend time with their grandmother.
(f)gave inappropriate weight, or did not provide adequate, or any, reasons to the weight he attributed to:
(i)the supervised time reports;
(ii)limited time the children have spent with grandmother in previous years;
(iii)that in the last four years, the children have spent very little time with the Respondent; and
(iv)the fact that the children have not spent any time at all since June 2021.
It is useful to individually consider the challenges made by the various sub-grounds.
As to (a), the primary magistrate said:
I am not able to make any findings about the children’s relationship with their grandmother on the current evidence before me. The evidence, again, of the parties is contradictory, and the contact supervisors have only seen the children interacting with the applicant for a very limited time. However, the benefit of the children having some relationship with their grandmother cannot, on the evidence before me, be completely excluded.
(Transcript 19 August 2022, p.15 lines 7-14)
Later, his Honour continued:
This is a very difficult matter to determine on an interim basis, particularly because of the significant conflict on the evidence of the parties and the absence of any independent evidence, from either a Family Consultant or a Single Expert Witness, on matters such as the children’s views, the nature and extent of their relationship with the applicant and the impact – adverse or otherwise – on the children if they were or were not to see their grandmother.
(Transcript 19 August 2022, p.16 lines 45-54)
Plainly his Honour was advertent to the difficulty which the lack of independent evidence created.
Ultimately, the primary magistrate concluded:
Having regard to all of the relevant considerations in the legislation, the evidence and submissions of the parties I have referred to, including the possibility of the children’s lives benefitting from potentially having some relationship with their grandmother and weighting that against the parties’ attitudes to each other, the potential effect on the emotional welfare of the children and the children’s happy and settled relationship with their parents, I’ve come to the conclusion, on balance that it is in the children’s best interests to see their grandmother, but only for short periods twice a month but not during school holidays, on special occasions, or when the children are involved in their activities.
(Transcript 19 August 2022, p.18 lines 8-20)
The absence of a positive finding of a benefit to the children in having a relationship with the grandmother was therefore acknowledged by his Honour; the interim orders merely enabled any relationship to be, in a very limited way, facilitated at least until final orders were made. The primary magistrate did not err in doing so, and hence there is no merit to this challenge.
As to (b), it is suffice to say that the grandmother’s extant significance to the children was not an essential pre-condition to the interim orders made, and there is thus no substance to this complaint. However the grandmother’s historical involvement in the children’s lives was hotly contested, and therefore unable to be determined by the primary magistrate. On no view, however, did that inability preclude orders being made in the grandmother’s favour.
As to (c), this complaint confuses the taking into account of relevant considerations with discussing them in the reasons. It is not necessary that a trial judge “mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at 132).
In any event, as I have detailed in discussing Ground 1, the primary magistrate’s reasons did specifically address the matters complained of in (i), (ii) and (iii), and his Honour was plainly aware of the parents’ antipathy towards the grandmother, and their opposition to her spending time with the children. Whilst his Honour was unable to conclude, on an interim basis, what impact the proceedings would have on the children, he did conclude that they were all “very likely to know what’s going on with their parents and their grandmother” (Transcript 19 August 2022, p.14 lines 47-48). Moreover the proceedings would continue, with or without interim orders. This challenge fails.
As to (d), the primary magistrate was well aware that the children had little recent involvement with the grandmother (Transcript 19 August 2022, p.4 lines 34-35 and p.12 lines 46-50), and had last spent time with her over a year earlier (Transcript 19 August 2022, p.11 lines 29-31). His Honour likewise must be taken to be well aware of the parents’ opposition to the grandmother having anything to do with the children, as that was the very basis for them opposing her interim application.
As to (e), the obligation to give reasons is well established. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
However an overly critical or pernickety analysis of reasons is to be avoided (AMS v AIF (1999) 199 CLR 160 at 211 per Kirby J).
In this case, it is clear from the extract of the reasons recited at [33] above that the reason why, on an interim basis, the primary magistrate considered that the children should spend time with the grandmother, was the possibility of them deriving benefit from that relationship. That is an adequate exposure of his reasoning.
As to (f), it is plain that the primary magistrate gave some weight to the relevant reports. Why that weight was inappropriate was not explained by the parents. Moreover, the weight given to evidence was quintessentially a matter for the primary magistrate (CDJ v VAJ (1998) 197 CLR 172 at 230-231 per Kirby J). That I might have afforded it different weight does not establish error.
As to the reasons challenge, it was not incumbent upon the primary magistrate to explain the weight given to various parts of the evidence.
I should also address complaints advanced under this ground in the parents’ Summary of Argument, although not strictly raised under any of the sub-grounds.
The first is the contention that the primary magistrate “made no findings in any of the 60CC factors that would suggest it is determinative that the child[ren] spend time with the grandmother” (at paragraph 53). However interim proceedings are often hampered by an inability to make definitive findings if there is conflicting evidence, as was the case here as his Honour often noted in his reasons. In any event, there was, on any view, a prospect of the children benefiting from a relationship with the grandmother, which could not, in an interim hearing with disputed facts, be excluded, as the primary magistrate specifically noted.
The second is an alleged failure by the primary magistrate to make any inference from the several supervisors’ reports relating to the grandmother’s earlier time with the children. However the reports were inconsistent, and recorded that the children’s demeanour changed between the first and second visits, about which the supervisor expressed concern.
Thirdly, it is contended that the primary magistrate gave inadequate weight to the fact that the children had spent little time with the grandmother over the last four years (paragraph 55). Such a challenge does not engage with the principles I have recited earlier in House v The King.
Fourthly, it was contended that the requirements of s 69ZN(3) of the Act were not adhered to, in that the impact which the conduct of the proceedings may have on the children was not taken into account. However his Honour concluded that the children were already involved in the proceedings (Transcript 19 August 2022, p.17 lines 35-36).
Fifthly, some submissions were advanced to the effect that a grandparent does not have an automatic right to a relationship with their grandchildren (at paragraphs 65–70) and that the primary magistrate wrongly concluded, as a default position, that there was such a right. However that plainly is not what the primary magistrate did here, but rather he could not exclude the possibility of benefit to the children from such a relationship.
Sixthly it is said that the children already have relationships with other members of their mother’s family (at paragraph 73) which implicitly somehow reduced the desirability of them having a relationship with the grandmother. Clearly though, the primary magistrate was well aware of the children’s relationship with other maternal family members (Transcript 19 August 2022, p.3 lines 26-29).
Finally it was contended that the primary magistrate erred by not considering the parents’ views about the children spending time with the grandmother, but it is beyond doubt that his Honour was cognisant of those views, and hence this can again only be a challenge to the weight given to them, which challenge must fail.
Ground 2 fails.
Ground 3
This ground reads:
3.The learned Magistrate failed to take into account or didn’t provide enough weight on the high level of conflict and psychological abuse alleged by both parties, the need to protect children from physical or psychological harm, and how this conflict would impact the children’s emotional needs and wellbeing and the emotional wellbeing of the primary caregivers of the children and whether these are either in the best interests of the children or whether they pose an unacceptable risk of harm to the children.
The challenges raised by this ground are largely a repetition of the matters already traversed above. It is sufficient to say that the primary magistrate was obviously well aware of the matters raised by this ground, and the weight given to them was a matter for his Honour.
Although not strictly within the purview of the ground, as argued, the parents’ principal contention advanced appeared to be, in effect, that the primary magistrate failed to recognise the unacceptable risk of psychological harm which the parents said the grandmother posed to the children, based on her alleged treatment of other family members in the past. More, it is said that the fact such claims were disputed did not mean that the risk should be ignored.
As to this, the primary magistrate said:
The next consideration is the capacity of each of the parents and any person to provide for the children’s need. There’s no challenge of any significant nature, in my view, as to the parents’ capacity to meet the children’s needs in all respects.
The respondents submitted the applicant cannot provide for the children’s emotional needs because of her poor attitude towards the respondents and her inability to control her attitude towards them. Again, the evidence is contradictory, and I cannot make any finding.
The attitude and responsibilities of parenthood demonstrated by the parents, is not a relevant consideration, as the applicant is not one of the children’s parents.
I must next consider any family violence involving the children.
I am satisfied there is no issue with physical violence. But, the parties have given evidence of verbal exchanges, sometimes in the presence of the children. Again, I cannot make any findings on the disputed evidence in that respect.
(Transcript 19 August 2022, p.15 line 39 to p.16 line 13)
The primary magistrate was therefore aware of, and took into account, the risks referred to above, particularly when explaining why he imposed supervision and made the non-disparagement (etc) orders I have referred to earlier. Particularly, his Honour said:
Given the attitudes of the parties to each other, and the potential for things to be said that may impact on the children emotionally, that time will be supervised.
…
In my view, supervision is required for the reasons I have given, to minimise any unnecessary upset for the children and also to provide some further evidence of the children’s reaction and their relationships with their grandmother to assist the Court in making a final determination of the parties’ respective applications.
(Transcript 19 August 2022, p.18 lines 22-35)
Plainly therefore, supervision, and the other restrictions imposed on the grandmother, were a direct response to the concerns that she may expose the children to any negative attitude which she may have towards the mother or others, and to guard against her speaking inappropriately to the children.
Thus, given its extremely limited nature, and the restrictions imposed upon it under the orders, it is quite unclear how spending supervised time with the grandmother might expose the children to an unacceptable risk of harm of any kind.
This ground fails.
Ground 4
The last ground contends:
4.The learned Magistrate erred in law by taking into account an irrelevant consideration in making his decision to make spend time orders, by apparently using the process to gain further evidence for trial without adequately considering the impacts of spend time orders on the emotional wellbeing of the children or their parents.
This ground misunderstands what the primary magistrate said at Transcript 19 August 2022, p.18 lines 22-35 quoted above, in that it is patently clear that the primary reason for supervision was to protect against the children being exposed to negative comments by the grandmother. The reports which would ensue were merely incidental, although useful.
So construed, by requiring supervision, the Court was imposing a requirement favourable to the parents, given that the alternative was to order unsupervised time. How imposing supervision somehow then led to error of which the parents may legitimately complain is unclear. In any event, the supervisor’s independent evidence will likely be of assistance to the Court hearing the trial, and therefore it was not an irrelevant consideration. The balance of the ground has been addressed above.
Ground 4 fails.
conclusion
No ground of appeal succeeds, and the appeal will be dismissed.
costs
In the event the appeal failed, the grandmother sought no order as to costs. Each party will therefore bear their own costs.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 14 December 2022
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