Quinn (a pseudonym) v Clarke (a pseudonym) - [2025] WASCA 137

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   QUINN (A PSEUDONYM) -v- CLARKE (A PSEUDONYM) [2025] WASCA 137
CORAM:   THOMSON P
MITCHELL JA
VAUGHAN JA

HEARD:   20 AUGUST 2025
DELIVERED          :   12 SEPTEMBER 2025
FILE NO/S:   CACV 21 of 2024
BETWEEN:   QUINN (A PSEUDONYM)
Appellant
AND
CLARKE (A PSEUDONYM)
First Respondent
INDEPENDENT CHILDREN'S LAWYER
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   BERRY J
Citation: QUINN & CLARKE [2024] FCWA 59
File Number            :   AIP XXX of XXXX

Catchwords:

Parenting - Parenting orders sought by paternal grandfather to teach indigenous heritage to grandchild - Trauma to mother - Father not a party to proceedings - Discretionary decisions

Legislation:

Family Court Act 1997 (WA)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	P J Hannan & H P Dodson
First Respondent	:	A G Spashett
Second Respondent	:	T Parkinson

Solicitors:

Appellant	:	Aboriginal Legal Service
First Respondent	:	Legal Aid (WA)
Second Respondent	:	Bannerman Solicitors

Case(s) referred to in decision(s):

Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662
G v O [2018] WASCA 211; 53 WAR 393
House v The King [1936] HCA 40; (1936) 55 CLR 499
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Quinn & Clarke [2024] FCWA 59
Shinohara & Shinohara [2025] FedCFamC1A 126

JUDGMENT OF THE COURT

Introduction

The primary proceedings concerned an application for parenting orders in respect of the son of the first respondent (the 'mother'). The interests of the son (the 'child') are separately represented by the second respondent, the Independent Children's Lawyer. The child was born in January 2014 and is now 11 years old.
The appellant is the child's paternal grandfather (the 'grandfather'). The appellant is an Aboriginal man.[1] So too is the appellant's son, the father of the child (the 'father'). The mother is not Aboriginal.
[1] Quinn & Clarke [2024] FCWA 59 ('Reasons') [19].
The appellant brought the primary proceedings seeking visiting and remote video arrangements to make contact with the child, to ensure that the child experiences and learns about, their Aboriginal culture. Prior to trial, the appellant had not had any contact with the child since September 2016.
The appellant contended that the following important aspects of Aboriginal culture should be promoted to the child: [2]
(a)exposure to the language of the regions of origin of the paternal family;
(b)introduction to elders who have a lot of knowledge and stories to impart to younger people;
(c)locations where hunting can take place and significant sites of cultural importance around Perth and also in the Kimberley region that the paternal grandfather's mother is from, including locations that are available for the paternal family to camp on;
(d)art and culture from the sites of origin of the paternal family; and
(e)incidental issues of Aboriginal culture and language that would occur if the child spent time…

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: [2025] WASCA 137
Decision Date: 12 SEPTEMBER 2025

CaseChat Overview and Summary

The case of Quinn v Clarke involved a paternal grandfather seeking parenting orders to teach his grandchild his indigenous heritage. The child's mother, Quinn, opposed the application and argued that the involvement of the grandfather, Clarke, would cause her significant trauma. Clarke applied for the orders under the Family Law Act 1975 (Cth). The Federal Circuit Court of Australia was tasked with determining whether Clarke's application should be granted, considering the welfare and best interests of the child.

The court was required to weigh the potential benefits of Clarke teaching the child his indigenous heritage against the risk of causing trauma to Quinn. The court also had to consider whether Clarke's involvement would be in the child's best interests and whether Quinn's trauma would be outweighed by the potential benefits to the child. Furthermore, the court had to determine whether the father, who was not a party to the proceedings, had any input into the decision-making process.

In reaching its decision, the court considered the child's welfare and best interests as the paramount consideration. The court found that while teaching the child his indigenous heritage would be beneficial, the risk of causing trauma to Quinn outweighed this benefit. The court also found that the father's absence from the proceedings did not impact the decision-making process, as the court's primary concern was the child's welfare and best interests. Ultimately, the court decided that Clarke's application for parenting orders should be dismissed. The court's decision was based on the principle that the welfare and best interests of the child are paramount in all decisions relating to children. The court found that Clarke's involvement would cause significant trauma to Quinn, which outweighed the potential benefits to the child. The court also found that the father's absence from the proceedings did not impact the decision-making process, as the court's primary concern was the child's welfare and best interests.

Orders