Lech v Lech

The applicant, the father, sought special leave to appeal to the High Court of Australia against a decision concerning access to his daughter. The dispute centred on whether the father should be granted access, with the courts below having refused access based on concerns about the child's welfare. The father argued that the courts had erred in their assessment of the risk of him absconding with the child, as he had done previously.

The primary legal issue before the High Court was whether the courts below had correctly applied the principles governing parental access, particularly in light of the paramount consideration of the child's welfare. The applicant contended that there was insufficient evidence to establish a real risk of him repeating his past conduct of taking the child and living with her under an assumed name. He argued that the courts had placed undue weight on past behaviour without sufficient regard to the current circumstances and the absence of any recent attempts to abscond, despite opportunities.

The applicant submitted that the courts' reliance on an "historical view" of judging future conduct by past actions was inappropriate when applied to individuals who had demonstrated a change in behaviour. He argued that the legal standard, as articulated in cases like *Hughes v Hughes*, required a "real risk" or "real likelihood" of abduction or the flouting of court orders, which he contended was not evidenced. The High Court, however, determined that the appeal was from the exercise of a discretionary judgment and that the grounds of appeal did not raise any question of general principle.

Consequently, the High Court refused the application for special leave to appeal.