QUINN and CLARKE - [2024] FCWA 59

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: QUINN and CLARKE [2024] FCWA 59
CORAM: BERRY J
HEARD: [REDACTED]
DELIVERED : 3 APRIL 2024
FILE NO/S: [REDACTED]
BETWEEN: MR QUINN
Applicant
AND
MS CLARKE
Respondent

Catchwords:

PARENTING - Application by the Aboriginal paternal grandfather of the child seeking orders including to communicate and spend time with the child to enable the child to enjoy the child's Aboriginal culture - Where the paternal grandfather has not spent time or communicated with the child since September 2016 - Where the mother has been traumatised by her domestic relationship with the father and is anxious for the child not to have any contact or communication with the father or to be at risk of doing so - Where the father perpetrated family violence against the mother during cohabitation and has an extensive criminal record - Where the father was previously a party to the proceedings but was removed as a party in July 2021 - Where the father is bound by a 10-year Family Violence Restraining Order protecting the mother from him until March 2029 - Where the mother does not agree to the child spending time or communicating with members of the paternal family other than the paternal grandfather without her written consent - Where the mother lacks trust and confidence in the paternal grandfather being able to resist bringing the child into contact with the father or providing the father with information about the child's or the mother's location - Where the paternal grandfather and other paternal family members reside in Western Australia and the mother and the child reside in an undisclosed location in the Eastern States - Where the parties agree the terms of some but not all parenting orders by which the paternal grandfather communicates with and spends time with the child - Where the Court is satisfied that the mother should have sole parental responsibility for the child - Where the child's mental health outcomes are likely to be negatively impacted if he does not have engagement with the paternal family and indigenous culture but also if orders are made that heighten the mother's trauma - Orders made - Case turns on its own facts

Legislation:

Aboriginal Affairs Planning Authority Act 1972 (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Legal Profession Act 2008 (WA)
Restraining Orders Act 1997 (WA)
United Nations Convention on the Rights of a Child (1989)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms L DeMaio
Respondent	:	Ms R Milton
Independent Children's Lawyer	:	Ms J Johnston

Solicitors:

Applicant	:	Aboriginal Legal Service - Perth
Respondent	:	Legal Aid Western Australia
Independent Children's Lawyer	:	Bannerman Solicitors

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

Allesch v Maunz (2000) 203 CLR 172
Banks & Banks (2015) FLC 93-637
Dietrich v The Queen (1992) 177 CLR 292
Donnell & Dovey (2010) FLC 93-428
Hort & Verran (2009) FLC 93-418
In the marriage of B and R…

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: [2024] FCWA 59
Decision Date: 3 APRIL 2024

CaseChat Overview and Summary

The case involved an application by an Aboriginal paternal grandfather seeking parenting orders to facilitate communication and time with his grandson to enable the child to enjoy his Aboriginal culture. The paternal grandfather had not spent time or communicated with the child since September 2016, and the father, who had perpetrated family violence against the mother, was bound by a 10-year Family Violence Restraining Order until March 2029. The mother was traumatised by her domestic relationship with the father and was anxious for the child not to have any contact or communication with the father or to be at risk of doing so. The mother did not agree to the child spending time or communicating with members of the paternal family other than the paternal grandfather without her written consent. The mother lacked trust and confidence in the paternal grandfather being able to resist bringing the child into contact with the father or providing the father with information about the child's or the mother's location. The paternal grandfather and other paternal family members resided in Western Australia, while the mother and the child resided in an undisclosed location in the Eastern States.

The court was required to decide whether the paternal grandfather should be granted orders to communicate and spend time with the child and whether these orders would negatively impact the child's mental health outcomes. The court had to consider the mother's trauma and anxiety, the father's criminal record, and the paternal grandfather's ability to resist bringing the child into contact with the father or providing the father with information about the child's or the mother's location. The court also had to consider the child's need to engage with his Aboriginal culture and the potential negative impact on the child's mental health outcomes if orders were made that heightened the mother's trauma.

The court found that the mother should have sole parental responsibility for the child, and the terms of some but not all parenting orders by which the paternal grandfather communicates with and spends time with the child were agreed upon by the parties. The court was satisfied that the child's mental health outcomes were likely to be negatively impacted if he did not have engagement with his paternal family and indigenous culture but also if orders were made that heightened the mother's trauma. The court made orders that allowed the paternal grandfather to communicate with and spend time with the child, but these orders were subject to conditions to ensure the child's safety and well-being. The case turned on its own facts, and the court's decision was based on the unique circumstances of the case.

The court made orders that allowed the paternal grandfather to communicate with and spend time with the child, but these orders were subject to conditions to ensure the child's safety and well-being. The orders included that the paternal grandfather could communicate with the child by phone or video call once a month, and that he could spend time with the child in a supervised setting once every six months. The orders also included that the paternal grandfather could not bring the child into contact with the father or provide the father with information about the child's or the mother's location. The orders were subject to review in six months, and the court noted that the orders could be varied if the circumstances of the case changed. The court's decision was based on the unique circumstances of the case and was intended to balance the child's need to engage with his Aboriginal culture and the potential negative impact on the child's mental health outcomes if orders were made that heightened the mother's trauma.

Orders