Sarti and Sarti and Anor (No.2)
[2020] FCCA 2595
•17 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARTI & SARTI & ANOR (No.2) | [2020] FCCA 2595 |
| Catchwords: FAMILY LAW – Stay – application for stay pending determination of appeal of interim judgment – parenting proceedings – terminally ill grandfather seeking time with grandchild – proper consideration of evidence by trial judge – considerations regarding appeals from interim discretionary judgments – consideration of Full Court decisions regarding parenting applications by non-parents – stay application dismissed – costs reserved. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 117 |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 AMS v AIF (1999) 199 CLR 160 CDJ v VAJ (1998) 197 CLR 172 Crouper & Mitchell [2014] FamCAFC 246 Goode v Goode (2006) 206 FLR 212; 36 Fam LR 422 Gronow & Gronow (1979) 144 CLR 513 Harries v Harries (2012) 45 Fam LR 598 Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 K & B (2006) FLC 93-288 Medlow v Medlow (2016) 306 FLR 183; (2016) 54 Fam LR 389; (2016) FLC 93-692 Sigley v Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 Valentine v Lacerra (2013) 49 Fam LR 255 Professor M Nussbaum, Anger and Forgiveness: Resentment, Generosity, Justice (New York: Oxford University Press, 2016) |
| First Applicant: | MR B SARTI |
| Second Applicant Respondent: | MS SARTI |
| Respondent: | MR SARTI |
| File Number: | CAC 1154 of 2020 |
| Judgment of: | Judge W J Neville |
| Hearing date: | 19 August 2020 |
| Date of Last Submission: | 18 August 2020 |
| Delivered at: | Canberra |
| Delivered on: | 17 September 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr C Othen |
| Solicitors for the Applicants: | Farrar Gesini Dunn |
| Counsel for the Respondent: | Mr J Haddock |
| Solicitors for the Respondent: | Kennedy & Cooke Lawyers |
ORDERS
The Stay Application filed by the Applicants on 12 August 2020 be dismissed.
Costs be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Sarti & Sarti & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1154 of 2020
| MR B SARTI |
First Applicant
| MS SARTI |
Second Applicant
And
| MR SARTI |
Respondent
REASONS FOR JUDGMENT
Introduction
Given that I was not the trial Judge, and that I am involved in the proceeding to deal only with the Stay Application that was filed on 12 August 2020 in relation to the Orders made by Judge Hughes on 31 July 2020, I make the following by way of observation only.[1]
[1] In general terms, in my view litigants and their legal representatives are entitled to know the cause(s) for any delay in the provision of reasons. In this instance, apart from the usual difficulties arising from the Court’s unconscionable and unsustainable workload, and in this Registry, where two Judges (with the assistance of occasional visiting Judges) are doing the work of three Judges (as was formerly the case), I was hospitalised urgently on two occasions shortly after the Application was heard. If any more be needed, the frailty and fragility of life was thus all too plainly highlighted. For more abundant caution however I stress that I mention my “health issues” only for the purposes of indicating the reason for this judgment not being provided earlier.
All family law practitioners (and presumably their clients) know that the Family Law Act 1975 (Cth) (“the Act”) prescribes that the foundational and fundamental principle that guides a Court in making parenting Orders is “the child’s best interests.”[2] This is otherwise known as the “paramountcy principle.”
[2] See Family Law Act 1975 (Cth) s.60CA.
Presumably it is otiose to record that it is in the subject child’s – X’s – best interests that the adults in his life who are embroiled in the current litigation – his parents and his paternal Grandfather – stop fighting. That self-evident but unfulfilled course would immediately resolve the current dispute that is doubtless costing everyone grief, and likely significant amounts of money, which could otherwise be spent on X rather than – respectfully – on lawyers.
This dispute also arises in circumstances where (a) the Father has previously allowed and facilitated X’s time with the Grandfather, (b) there is no relevant risk to X in spending time with his Grandfather, and (c) it seems to be acknowledged by all that X and his Grandfather have a good relationship. The “issue” in dispute relates to the poor, indeed acrimonious, relationship between the adults. There seems to be significant amounts of enmity on each side of the dispute. How sad and impoverished to record all this. Put even more simply, the adults just do not “get on”, even in the face of the paternal Grandfather’s imminent demise due to a terminal illness. Stated in the vernacular, the Grandfather is on “borrowed time”; the only question is “how much time?”
Indeed, to be blunt, and not intending to be gauche (or worse), the matter will, in any event, resolve in the not too distant future because the medical evidence before the Court (such as it is but which seems not to be contested) confirms that the Applicant Grandfather will die soon, literally within a matter of months.
The parents, who are separated, are united in their opposition to X spending any time with the Grandfather. So united are they that they are challenging the interim discretionary judgment of her Honour, Judge Hughes. Yet on one possible scenario, by the time an appeal is held and judgment delivered the Grandfather will quite likely be dead. In such a case, not only will the appeal be futile (not to mention the immense costs expended on it), it will also mean that (a) X will have been deprived of spending time with his Grandfather, and (b) (not for the first time) only the lawyers will have benefitted. The Grandfather – who is readily acknowledged to be a difficult if not sometimes cantankerous fellow – will have gone to his grave with the singular bitterness – apparently – of there being no reconciliation with his son, and having spent no further time with his Grandson. What a tragedy; all semblance of humanity has been spent. Utter bitterness has been deeply sown. Who knows what else might be reaped, now and in the future. And of course, to insult to injury and family turmoil, as noted below, the parents seek that the Grandfather pay their costs.
Moreover, the expenditure of precious resources by the parties and the Court on (a) the interim hearing, (b) the hearing of the stay Application, and (c) the appeal (there may, of course, also be an appeal from the stay judgment), must surely be a further and ongoing cause for lament. Imagine if such expenditure was spent on X rather than on lawyers.
For the reasons that follow, the Application in a Case seeking a stay must be dismissed. I offer the following caution for what follows: while the reasons properly deal with the formal matter before the Court – the Stay Application – the reasons somewhat regularly comment in what could reasonably be taken to be a lament, primarily for all the parties involved as well as the child in question, X.
Orders Made and Sought
On 31 July 2020, Judge Hughes made the following Orders:
(1) Until further order the child, X born in 2015 (“the child”), shall spend time with his paternal grandfather as agreed between the parties but, failing agreement, every second week to occur from 10am until 2pm on Sunday in one fortnight and on Friday in the alternate fortnight and for the purpose of this order:
(a) X’ time with his grandfather shall occur in the time the child would otherwise be in the care of his father;
(b) if X is currently in the care of his father, the time shall commence on Sunday 2 August 2020; and
(c) if X is currently in the care of his mother the time shall commence on Sunday 9 August 2020.
(2) Changeover for the purposes of these orders shall occur at the home of the father or, if preferred by the father, at the C Service Station, D Highway, Suburb E, ACT.
(3) Without admission or any finding by the Court at this stage as to its necessity, the grandfather is hereby restrained from speaking in a derogatory manner about either of the child’s parents, or members of their extended families, to the child or in his presence, or allowing any other person to do so.
(4) In the event that there is a decline in the grandfather’s health such that he is unable to effectively supervise the child, the grandfather shall ensure another adult is substantially present during his time with the child and shall notify the child’s parents of the name and contact details of that person prior to the time commencing.
(5) Otherwise, the interim application filed by the grandfather on 10 June 2020 is dismissed.
(6) The proceedings are adjourned to 21 October 2020 at 9.30am for mention and directions.
On 7 August 2020, the Applicants lodged a Notice of Appeal seeking the following orders:
1. That the appeal be allowed
2. The Orders dated 31 July 2020 are set aside.
3. The Full Court re-exercise the discretion of the trial judge, and in that event, the appellants have leave to adduce evidence as to the health of the paternal grandfather and by way of an urgent short form report of a family consultant.
4. The Respondent’s Application for interim parenting orders filed 10 June 2020 be dismissed.
5. The Respondent pay the Appellants’ costs of the appeal.
The grounds of appeal
As the parents note in their outline of submissions, the first Notice of Appeal came via an email to the Registry of the Court on 7 August 2020. This was attached to the Father’s Affidavit. The Grounds of Appeal set out in that document were as follows (emphasis added):
1. That the Trial Judge erred in concluding that the making of an order against the wishes of both parents did not interfere with the parents exercising parental responsibility.
2. That the Trial Judge erred in making an order against the wishes of both parents without first concluding their conduct was contrary to the child’s best interests.
3. That the Trial Judge erred in placing no, or insignificant, weight on the existing and positive co-parenting relationship enjoyed by the Respondents.
4. That the Trial Judge fell into error by finding that the child had a meaningful relationship with the Applicant.
5. That the Trial Judge fell into error by finding that the child either did or would derive benefits from having a relationship with the Applicant.
6. That the Trial Judge erred in relying on representations about the Applicant’s health in the absence of expert evidence as to same.
7. That the Trial Judge made findings of fact in a truncated interim hearing beyond those facts which were uncontested, such findings being not available to Her Honour, including specifically those at paragraphs 39, 40, 41, 44 and 45 of the Reasons for Judgement.
8. Mr J – not sure if you want to say something specific about Order requiring multiple layers of subjective assessment
No further documentation was provided directly to this Court after 7 August, save for the outline of submissions (set out below). Unsurprisingly, when I first saw these Grounds as drafted I was both surprised and curious. It led to a brief inquiry, noted later in these reasons, to Counsel for the Grandfather (who was appearing in another matter at the time) whether he had seen the Grounds of Appeal. A short, necessarily informal, discussion followed. The solicitors on the record for the parents were present at the time of this brief exchange – on which more later.
During the hearing of the stay Application on 19 August 2020, I requested that a copy of the Grounds of Appeal, as filed, be provided. This was the first time that those Grounds of Appeal were made available to this Court. The Grounds of Appeal set out in that document were as follows:
1. That the Trial Judge erred in placing insignificant weight on the parents’ exercise of parental responsibility in jointly deciding not to facilitate time as between the child and paternal grandfather, and their reasons for doing so.
2. The Trial Judge gave inadequate reasons for interfering with the parents’ exercise of parental responsibility.
3. That the Trial Judge’s findings as to:
a) that the child has a positive relationship with the grandfather;
b) that the grandfather had a meaningful relationship with the child;
c) that it would be in the child’s best interests to have a relationship with the paternal grandfather;
d) that the child has an affectionate and loving relationship with the paternal grandfather; and
e) that any inconvenience to or irritation of the parents is also likely to be short lived;
were not open on the evidence, and were not available in contested interim proceedings.
4. The Trial Judge placed excessive weight on the potential benefits to the child in spending time with his paternal grandfather.
5. The Trial Judge erred in finding that the child has “a right” to have a meaningful relationship with the paternal grandfather.
6. The Trial Judge placed insignificant weight on the evidence (or lack thereof) as to the paternal grandfather’s health, and failed to properly have regard to this in making parenting orders in the best interests of the child.
7. The Trial Judge erred in failing to ensure the Court had the benefit of expert opinion evidence as to the impact on the child of:
a) the rapidly declining health of the paternal grandfather, and his imminent death, the paternal grandfather conceding during the hearing that he was “unlikely to survive beyond August this year”; and
b) the short and long term psychological and emotional “repercussions” or effect on the child by mandating the terms of time spent.
8. As to Order 4, the Trial Judge’s findings that having “another adult in substantial attendance” during the paternal grandfather’s time with the child would provide an “adequate safety mechanism” was not open on the evidence. In the alternative, that the terms of order 3 are so uncertain that it is incapable of proper interpretation.
9. The Orders allowing time as between the child and paternal grandfather were plainly wrong
It would seem that the original Grounds of Appeal, sent via email to the Registry on 7 August, were attached to the Father’s Affidavit in error. While this was later rectified with documents filed on the Commonwealth Courts Portal, the provision of some documents by email, and others by electronic filing, have further complicated the efficient provision of materials directly to this Court – hence the request by me at the hearing for a copy of the Grounds of Appeal as filed.
At the conclusion of the hearing, after some purported errors in the Grounds of Appeal were identified by Counsel for the Grandfather, for greater certainty and ease of reference, I requested that they be edited so that paragraph numbers from her Honour’s judgment were specified in relation to each Ground of Appeal. The Grounds of Appeal, with referenced paragraphs, are as follows:
SUBMISSIONS OF THE RESPONDENTS PREPARED PURSUANT TO DIRECTION OF 19 AUGUST 2020
1. On 31 July 2020 Judge Hughes made orders and provided reasons for judgment in respect of the applicant’s application to spend time with the subject child of these proceedings, being X, born in 2015 and currently five years old.
2. On 10 August 2020 the respondents filed a Notice of Appeal listing nine grounds of appeal.
3. On 19 August 2020 Judge Neville, in the context of the respondent’s application for a Stay of the Orders pending appeal, directed the respondents to file short submissions as to which paragraphs of the judgment were referable to each ground of appeal.
4. The below table is prepared in accordance with that Direction:
Ground
Paragraph Reference
1
[50], [53]
2
[46] – [55] inclusive
3
(a) – [40], [48]
(b) – [27], [39], [40], [50], [53]
(c) – [11], [54], [55]
(d) – [39]
(e) – [45]
4
Reasons as a whole
5
[50]
6
[5], [42], [43], [44]
7
[5], [42], [43], [53]
8
[44]
9
Reasons as a whole
Written submissions on behalf of the Applicants
The Applicant parents’ written submissions, filed 18th August 2020, were as follows:
PARENTS’ OUTLINE OF SUBMISSIONS
1. This is an application to stay interim parenting orders pending an appeal.
2. The applicable law concerning stay applications in the context of parenting proceedings was stated by the Full Court in Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106 at 18.
3. In the interim proceedings, the applicant paternal grandfather sought to spend time with the child X aged 5. X lives with his parents, who are separated, on an equal time basis. Both parents resisted an order that they be required to make X available to spend time with the applicant, on an interim and final basis.
4. The Court made findings to the effect that after a breakdown in relationship between the father and the paternal grandfather in March 2019, and some tense correspondence characterised by the trial Judge as antagonistic and provocative on the applicant’s part, 6 visits occurred for X with the applicant in Canberra, and one at the applicant’s home in Town F, between 8 August 2019 and 10 January 2020. The applicant did not spend time with X after that, and so by the date of hearing X had not seen the applicant for over 6 months.
5. On or around 11 April 2020, the parents took the joint decision in the exercise of their parental responsibility not to permit further visits for the applicant and communicated that to him. The applicant applied for parenting orders which were resisted. The applicant led evidence that his life expectancy in May 2020 was 3 months at trial due to inoperable liver cancer. He has since provided evidence that his life expectancy is longer.
6. The judgment was delivered on 31 July 2020. On 7 August 2020, the parents sent a notice of appeal to the Court for filing, seeking to set aside the orders; the notice of appeal was filed 10 August 2020.
7. The parents have shown their bona fides in bringing their appeal promptly before any time was due to take place, inviting the applicant to consent to a stay, and filing and serving an application for stay in this Court before any time was due to take place. The parents could have done no more to put before the Court their concerns about the decision by the trial Judge and seeking its appellate review, before any time was due to take place.
8. The dispute is about whether the parents should be required to make X available to spend time with the applicant at any time. In those circumstances, the parents cannot offer terms of a stay which include any time for the applicant. However, they do offer, as a condition of the stay being granted, an undertaking that they will file and serve within 7 days an Application in an Appeal seeking expedition of the appeal.
9. A substantial factor will be consideration of whether the appeal is rendered nugatory by the failure to grant a stay. The subject matter of the order and appeal is whether the Court should make an order on an interim basis that the child spend time with the applicant. If the appeal is successful, then there will be no order that X spend time with the applicant. If the Court determines not to stay the orders, then X will be required to spend time with the applicant pending determination of the appeal, defeating the central purpose of the appeal.
10. The Court is required to undertake a preliminary assessment of the merits of the appeal, to ascertain whether there is an arguable case. Two particular points stand out amongst the many grounds, without in any way limiting the parents’ case.
11. The question of the Court’s interference in the parental responsibility of both parents on an interim basis by requiring them to make the child available to the applicant, particularly without any expert evidence from a family consultant or child and family psychiatrist as to the impact on the child of doing so, is very much arguable. As set out in the report of Mr K, the orders made by the trial Judge have a potentially harmful impact - albeit the report is appropriately qualified due to inability of the expert to interview the parties or the child. This issue is heightened by the lack of any adequate medical evidence led by the applicant as to the impact of his health condition on his functioning, his availability to care for the child and indeed, his life expectancy.
12. The Full Court is asked to consider legal questions arising from the decision, including the extent of the Court’s remit in interfering in the joint decision of two parents on an interim basis not to permit time for the applicant grandfather, and whether the child has a legal right to a meaningful relationship with the applicant grandfather; questions clearly arguable.
13. A potential consequence of not granting the stay is that X is required to be made available to spend time with the applicant, and then the time ceases as a consequence of a successful appeal. It would be undesirable to re-introduce X to the applicant for a short period pending appeal, only for a successful appeal to end the arrangement.
14. While it is conceded no alternative arrangement could be put in place, this would be for a relatively short period pending hearing of the appeal. The case for expedition of the appeal is strong, and the volume of the appeal books and transcript relatively slight. The Court can reasonably expect the appeal to be heard within 2-3 months on present estimates.
15. To the extent the life expectancy of the applicant was a factor in the mind of the trial Judge, subsequent evidence shows that the submissions made about the urgency of determining the interim application were in fact not well founded. There is no basis to reject the application for a stay on the grounds of the applicant’s ill health.
16. In all the circumstances, the appropriate exercise of discretion is to grant the stay on condition that the parents make an application for expedition of the appeal hearing within 7 days.
Written submissions on behalf of the Respondent
The Respondent Grandfather’s written submissions, filed 18th August 2020, were as follows:
RESPONDENT TO AN APPLICATION IN A CASE’S STAY APPLICATION SUBMISSIONS
Background
1. This outline of submissions sets out in brief compass those matters raised by the Respondent to an application for a stay of Judge Hughes’ Orders of 31 July 2020
2. The factual background is significant in the determination of the matter. Her Honour sets out the background accurately in her reasons. There are additional matters of evidence raised since those reasons and two important matters. First is the incorrect commentary in the father’s letter of 7 August 2020, noting his demand for a medical report as a condition of complying with orders. Second, is the delay between the delivery of reasons and the application for a stay brought by the father, an hour before close of business on the weekend on which the child was to spend time with the father. Third is the deficiencies in the Father’s Notice of Appeal, which would it is submitted open it to a claim of professional negligence or a claim of abuse of process.
The Principles Applying to the Stay Application & Submissions
3. Counsel does not propose to recite at length the relevant authorities. The particular authorities counsel relies on are Aldrige & Keaton (Stay Appeal) [2009] FamCAFC 106, particularly [18], Friscioni and Friscioni [2009] FamCAFC 43, of particular relevance Nygh J’s reasons in Clemett and Clemett (1981) FLC 91-013, and Medlow & Medlow [2016] FamCAFC 34.
4. Submissions are made as follows:
a. The First Respondent is entitled to the benefit of judgment and to assume the judgment is correct.
b. The bone [sic: “bona”] fides of the Applicant can only be in doubt in this matter. The Notice of Appeal is, on its face, simply incompetent before on [sic: “one”] examines the grounds. Haste in preparing a Notice of Appeal does not excuse such negligent conduct. This is one of the deficiencies referred to at [2]. That matter combines with the course of conduct engaged in of, having received reasons on 31 July 2020, waiting until an hour before the close of business on the weekend prior to the commencement of time to file a Notice of Appeal and attempting to manufacture a reasonable excuse. In the particular factual circumstances of this matter, it is open to find this is a delay in an attempt to obtain forensic advantage, precisely as Nygh J envisaged was a possibility and a reason to refuse a stay in Clemett and Clemett (1981) FLC 91-013. That conduct has been compounded by the provision of the inadmissible and purely speculative ‘ambush’ report of Mr K provided post-noon today.
c. The First Respondent is irreparably damaged by the grant of a stay. The matter had a hearing. The matter was determined. The solicitor for the father was given opportunity after opportunity to put the father’s case, even after Full Court authority was referred to that demonstrated his primary argument was fatally flawed. In those circumstances, there is no possibility that a grant of a stay could be ‘fair to all parties’.
d. Against any proposition that a stay would render the appeal nugatory one notes it would also render the decision nugatory. It is without contest that the grandfather is terminally ill. The best interests of X would suggest this ground has less weight.
e. The strength of the appeal on any proposed assessment is that it is, at best, weak. They are almost uniformly House & The King [sic], or Gronow & Gronow [sic] grounds. Ground 1, 3, 4, 6, 7 and 8 have that flavour. They bear fundamental flaws when one considered her Honour’s opening comments and the range of discretion available at an interim. Some ground are plainly incorrectly drafted or have no factual foundation on any reading of the decision. Ground 5 deals with a finding that does not exist in the reasons. Ground 6 and 7 make arguments not raised before her Honour and is in any event not sustainable on a reading of the reasons, noting the absence of the appropriate application that would go with those grounds. Unless the father is suggesting incompetency of his solicitor, he would know that the issue is not open by virtue of the well-known and cited over 1,000 times [7] of University of Wollongong & Metwally (1985) 60 ALR 68. Ground 8’s apparent alternative comment about Order 3 is simply nonsensical. Ground 9 has the problems cited in CDJ & VAJ from whence it comes and is an extraordinary claim given the Norbis & Norbis limitations.
f. The applicant brings no evidence of the proposed time in which an appeal may be heard. That is a crucial absence given the facts of this case.
g. The best interests of X have been determined. The Father conceded that there was no case in risk, beyond one about falling asleep whilst the child was in the grandfather’s care, which was dealt with by her Honour. There can be no possible interpretation of X’ best interests (and not what the father or parents together want) that supports a stay on the evidence.
Outline of principle
Although the parties have identified relevant principle regarding Applications seeking a stay of Orders, I note the following for completeness.
I record the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal).[3] At [17] – [18], the Court said (emphasis added):
[3] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications, where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B (2006) FLC 93-288, and more generally in relation to appeals against interlocutory Orders in the specific context outlined in Medlow v Medlow (2016) 306 FLR 183; (2016) 54 Fam LR 389; (2016) FLC 93-692.
[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· a person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to grant a stay;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
· the desirability of limiting the frequency of any change in a child’s living arrangements;
· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
· the best interests of the child the subject of the proceedings are a significant consideration.
I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[4]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[4] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.
In the same case, Aickin J said (at pp.537-538) (Mason and Wilson JJ agreeing at p.526) (emphasis added):
Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533 :
“The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”
It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.
The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.
I also remind myself of the observations by Kirby J in CDJ v VAJ, where his Honour said, at [185, par.2] (internal citations omitted; emphasis added):[5]
Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
[5] CDJ v VAJ (1998) 197 CLR 172.
To similar effect and emphases are the comments in Sigley v Evor where the Full Court said (at [128] – [129]; emphasis added)):[6]
[6] Sigley v Evor (2011) 44 Fam LR 439.
Discretionary judgment
[128] This is an appeal against a discretionary judgment and the principles to be applied are well established: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
[129] We are mindful of the position of the Federal Magistrate in relation to complaints about assessment of weight where no error of law or fact is obvious: see Gronow v Gronow at 519-20 per Stephen J. We are also mindful of the necessity to avoid “an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: see AMS v AIF (1999) 199 CLR 160 per Kirby J at 211; A v J (1995) 19 Fam LR 260 at 269 per Full Court (Fogarty, Lindenmayer and O’Ryan JJ) and Rollings v Rollings (2009) 230 FLR 396 per Full Court (Boland, O’Ryan and Murphy JJ).
In my view it is important also to recall the comments of Kirby J in AMS v AIF (a parenting case that involved “relocation”). For example, in that case, Kirby J observed that in parenting cases there is a “large element of judgment, discretion and intuition.”[7] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.”
[7] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted; emphasis added):[8]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[8] AMS v AIF (1999) CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby & Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are nonetheless important.
Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases, including the present matter.
Finally, although well known, it is important to recall the regular reminders by the Full Court of, among other things, (a) the necessary limitations that attend all interim hearings, (b) the (sometimes tricky if not perilous) requirements prescribed under the Part VII “legislative pathway”, and (c) the discretionary nature of such judgments – albeit already noted earlier in these reasons.
Invariably, appeal judgments regarding interim decisions refer to the primary reference point in the Full Court decision in Goode v Goode.[9] From the never-ending supply of such appeal judgments, whereby the Full Court must regularly turn its limited resources to the disposition of often quite pernickety appeals, the following is but a very small sample.
[9] Goode v Goode (2006) 206 FLR 212; 36 Fam LR 422 especially at [81] – [82].
In Perry & Perry, the Full Court (Murphy, Aldridge and Forrest JJ) said, at [12] – [14]:[10]
[12] When applications are brought on in circumstances of urgency, such as on a “holding over” of children, contrary to an existing Order after a school holiday visit, the process by which the application is determined is necessarily an abridged process in which the scope of the inquiry is “significantly curtailed” (Goode and Goode (2006) FLC 93-286 at [68]).
[13] Although adequate reasons must still be given, any assessment of the adequacy of the reasons given for decisions made in such circumstances must take account of those circumstances. (Bennett and Bennett (1991) FLC 92-191; Tael and Bonnard Equipment Pty Ltd & Liao (2008) FLC 93-379 per Thackray J at [29]–[31]) Overly pernickety scrutiny on appeal, of reasons given in such circumstances, should be avoided.
[14] Further, in such circumstances, the trial judge is not required to demonstrate that he or she has considered each of the s 60CC “primary” factors and “additional” factors by discussing them all. Discussion of the relevant, determinative factors will generally suffice, particularly where it is obvious that the findings made as to some of them will be determinative of the children’s best interests on an interim basis. In Banks & Banks (2015) FLC 93-637 at [50] the Full Court said:
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[10] Perry & Perry (2015) FLC 93-669.
Very succinctly, in Crouper & Mitchell, the Full Court (Bryant CJ, Strickland and Murphy JJ) commenced its discussion of the Grounds of Appeal in that case with the following comment, at [15]:[11]
Absent manifest error of law or breaches of rules of natural justice, an appellant will always face considerable difficulties challenging an interlocutory decision…
[11] Crouper & Mitchell [2014] FamCAFC 246.
Consideration & disposition
Before considering the specific Grounds of Appeal, it is apposite to make a number of more general observations.
First, Grounds 1, 4 and 6 all refer to issues of “weight”. Therefore they come immediately within the scope of the comments noted above regarding the caution classically exercised by appellate Courts in interfering with such matters, perhaps particularly so in relation to interim decisions. Accordingly, subject to particular comments on each of those Grounds, the comments earlier in these reasons regarding such matters, and other more general comments below, should be taken to apply, mutatis mutandis, to all three of the Grounds relating to “weight.”
Secondly, at [41] of her Honour’s judgment, she (a) rejected the claim by the parents of the possible adverse impact upon their parenting because of their engagement with the Grandfather, and (b) accepted (quite forcefully it would seem) the significant and co-operative parenting capacity of both parents. Her Honour said that the evidence confirmed that they were “child focussed” and “highly attuned to X’ needs.” Her Honour continued:
I have no doubt that they find dealing with the Grandfather stressful and difficult a lot of the time but there is no evidence that this has ever negatively impacted on their care of the child or that it is likely to do so in the future.
Nowhere is there any challenge to these important comments. Subject to other observations below, given how the matter was run before her Honour, notably about a [potential] risk to the parenting of X by his parents because of their engagement with the irascible and regularly demanding paternal Grandfather, in my view [41] is a critical fulcrum of the judgment. There is no challenge to this crucial paragraph.
Thirdly, there is no suggestion of any relevant risk to X spending time with his Grandfather. Presumably this would be equally, if not more so, if the Grandfather was supported by the presence of Ms G. This is proposed by the Grandfather.
Fourthly, after significant negotiation between the Father and the Grandfather over a substantial period of time, and agreement reached between them regarding the Grandfather’s time with X, the cessation of that time arose, not out of any relevant risk to the child but as a result of the Father’s concerns arising out the public health warnings from Commonwealth and other governments on or around 18 March 2020. This was confirmed in par.51 of the Father’s Affidavit, affirmed and filed on 29 June 2020.[12] The history of these negotiations were detailed in her Honour’s judgment, for example, at [24] – [27]. As recorded at [27] of the judgment, the Father offered the choice of 71 separate dates for X to spend with his Grandfather. Such a substantial offering of time between the Grandfather and X hardly bespeaks any relevant risk, or any other problem.
[12] The significant detail of these negotiations is set out at length in the Father’s Affidavit just referred to especially at pars.31 – 40.
Moreover, for a very significant period of time, the Father was making arrangements (or endeavouring to do so) for the Grandfather to spend time with X. Some time was spent between X and his Grandfather as a result of these extended discussions/negotiations. And even following the cessation of the “time with” arrangements for public health reasons, as deposed to in the Father’s 29 June 2020 Affidavit (par.55), the Mother arranged for the Grandfather to speak with X in 2020 on the occasion of the child’s birthday.
In the light of this abbreviated but significant history of negotiation to facilitate the Grandfather’s time with X, which ultimately occurred on a number of occasions, following which her Honour Ordered limited time between the Grandfather and X, it seems to me to be at least incongruous, if not patently illogical, to contend (as the parents do – Ground 9) that it was “plainly wrong” to have so ordered. Put another way, on the one hand, the parents facilitated time between the child and the Grandfather over a long period, but on the other hand they now criticise her Honour for doing precisely the same thing in the light of all the evidence, and following the prescribed pathway. It is one thing to disagree with a judicial decision; it is quite another to aver legal error in doing so, especially when so much of the evidence relied upon comes directly from the parents.
Fifthly, presumably the extensive range of “time with dates” would not have been offered (a) if there was any relevant risk to the child, (b) if the child did not already have an established relationship with the Grandfather, and (c) if there was no benefit to the child in having a relationship with the Grandfather.
It is inconceivable that these good, co-operative, attentive parents – about which there is no challenge – would have so agreed to any time, let alone such an extensive range of possible dates, if there was any relevant risk or concern, or if there was no benefit to the child from this relationship. Indeed, at par.28 of the Father’s Affidavit, filed 29 June 2020, after noting possible times to spend with X, the Father said to the Grandfather (among other things): “I hope this helps you to book some visits with him.” A little later in the same Affidavit (par.33), clearly to assuage the concerns of the Grandfather, the Father assured him that X still recognised him.
On the Father’s own evidence (summarised in the judgment at the paragraphs noted above), the matters just recounted seem to me to indicate, if not confirm, that (a) there was an established relationship between X and his paternal Grandfather, (b) there was at least some relevant benefit to the child of spending time with the Grandfather (otherwise these careful, diligent parents would not have agreed to it), and (c) until the public health notices in March this year, for a significant period of time, the parents sacrificed their own comfort to promote the child’s relationship with the Grandfather. The Father in particular went to significant lengths to promote and foster X’s relationship with the Grandfather. The Father offering 71 occasions from which the Grandfather could choose to spend time with X, in my view, was a very significant amount of encouragement of the Grandson – Grandfather relationship. Such a generous offering of time-with opportunities also suggests that there was not quite the amount or degree of impediment to the exercise of parental responsibility claimed by the Father (at least).
The parents should be commended, indeed honoured, for exhibiting such personal sacrifice – a hallmark of good parenting that has been acknowledged by the High Court, albeit in the context of a parenting matter that involved relocation.[13] I turn then to the specific Grounds of Appeal.
[13] See generally, U v U (2002) 211 CLR 238 at [92] per Gummow and Callinan JJ.
Finally, it is important to note a number of things from the limited report from the expert, Mr K (attached to his Affidavit, filed 18 August 2020):[14]
(a)From submissions made at the hearing, it seems not disputed that no notice was given to the Grandfather that such a report was being obtained, or more relevantly that an expert Report had been obtained and would be relied upon. If this be the case (I do not make any findings one way or the other) as a matter of procedural and professional courtesy, one would normally have expected that relevant notice was given of it;
(b)Leaving to one side the further costs incurred of doing so, the Report was produced on the basis of providing the Family Consultant with a range of documents, including the transcript of the hearing before her Honour, and the judgment under appeal. This is also to confirm that no one was interviewed for the preparation of the Report;
(c)Carefully, as one would expect, the expert weighs the possible negative aspects of X’s time with his Grandfather but also properly notes the “potential positive impact of the current Orders;”[15]
(d)Thus, even on the parents’ expert evidence, admittedly not tested, there is potential benefit in X spending time with his Grandfather. In my view, this evidence, among others, clearly undercuts Appeal Ground 9 (and others as well) to the effect that the “time with” Orders made by her Honour were “plainly wrong.” Even the parents’ own expert acknowledges the potential benefit of such an Order. It is not “black and white”, and there are, in the expert’s view, some risks, but few parenting cases, in the midst of the “chaotic complexity of family life”, are totally straight-forward;
(e)In my view, there is a somewhat concerning use of the expert report in the parent’s “Case Outline” for the Stay Application. At par.11 of the Outline, there is reference to the expert Report of Mr K. The Case Outline only and selectively refers to the possible negative aspects of the “time with” Orders. The Case Outline makes no mention of the possible positive aspects of the Orders. Giving every allowance for the relative brevity of the written submissions, such selective advocacy from an expert Report should not have occurred;
(f)Further, as the Case Outline makes clear, a singular focus of the parents is the affront to the exercise of their parental responsibility by the Orders under Appeal. To state again, and noted in detail below, this is to misunderstand, if not to ignore, the Full Court’s comments in Valentine & Lacerra. The duty of the Court was to make Orders, on an interim basis, that were considered to be in X’s best interests. This is precisely what the Court did. It was not a frontal attack on the exercise by the parents of their parental responsibility.
[14] The Family Consultant uses references to “line numbers” rather than the more usual “paragraph numbering” throughout his brief Report.
[15] See (approximately) lines 95 – 106 of the Report.
Ground 1: The Applicant parents refer in particular to [50] and [53] of the judgment as the bases for this Ground of Appeal. Briefly stated, and in addition to what I have already said, [50] simply distinguishes the current matter from the earlier case of Cook & Compton, which I need not discuss, or even provide the citation for it. The paragraph, obviously informed by consideration of the evidence outlined earlier in the judgment, then comments on the decisions of the parents to facilitate the relationship between X and the Grandfather (to which I have also earlier referred) and the fact that X and the Grandfather have an established relationship. How this conclusion is not supported by the evidence, particularly the offering by the Father of the 71 occasions from which to choose, in my view is not relevantly or properly explained.
Similarly, [53] of the judgment outlined the result of the consideration of the evidence put before the Court. It extols the virtue of the parents and their actions, notably in the face of the feisty and perhaps curmudgeonly Grandfather. Respectfully, virtue in parents (and in others too of course), not least in the example to children (and others), and in putting the good of others even before their own interests, is to be encouraged, not disparaged or spurned.
As already noted, Ground 1 is couched in terms of “weight”. As such, in accordance with the authorities earlier noted, even more caution is properly warranted to interfere with a discretionary judgment, particularly one issued on an interim basis.
While any two or more Judges might take a different view of this or that piece of evidence, what weight to give to it, and what (if any) provisional conclusion to reach about it, such matters in the light of authority are insufficient to warrant appellate intervention. It may be, for example, that another Judge may have come to the view that one occasion per month was sufficient for X to spend with the Grandfather in the difficult circumstances on display here. But this only indicates the broad range of possible conclusions other Judges may have reached. It does not, without more, bespeak error. Further, none of this is to say that the conclusion reached here was relevantly “outside the permissible range”, or that there was “insignificant weight on the parents’ exercise of parental responsibility …” (emphasis added). As always it is invariably a question of degree or emphasis, neither of which indicate relevant legal error.
For these reasons, I do not see any relevant error as set out in Ground 1.
Ground 2: the Applicant parents here refer to [46] – [55] of the judgment as the basis for this Ground of Appeal that avers there to have been “inadequate reasons” provided for the Orders made regarding the exercise of parental responsibility. In my view, this is one of a number of somewhat “curious” grounds of appeal, primarily because of the reasons already given, particularly those noted regarding the Father’s consistent offering of time between the child and the Grandfather, and that the time-with arrangements were only ceased because of the public health matters earlier recorded.
I have already noted various Full Court comments about both adequacy of reasons (context, among other things, is important), and the attenuated nature of interim proceedings. I will not repeat those references. Her Honour followed the prescribed pathway. She considered the evidence that the parties put before her. Read as a whole, the Court’s reasoning – on an interim basis – is plain for all to see.
Further, although the grounds of appeal and later documentation refer only to [46] – [55] of the reasons, it is curious that there is no reference to the consideration of the evidence by the Court set out at [4] – [33], or to the outline and discussion of relevant principle at [34] – [45]. The alleged inadequacy of the reasons at [46] – [55] must relevantly be seen in the light and context of the earlier paragraphs of the judgment. When that is done, again I do not see how such a ground of “inadequate reasons” can relevantly stand.
There are almost innumerable instances of Full Court discussion of principle regarding alleged “inadequacy of reasons.” For current purposes I simply note the following comments by the Full Court (Coleman, May and Johnston JJ) in Harries v Harries.[16] In that case, at [87] – [88], the Court said:
[16] Harries v Harries (2012) 45 Fam LR 598.
[87] This Court, in the case of Bennett and Bennett (1990) 14 Fam LR 397, referred to the importance of judges giving adequate reasons. At page 78,266 it described the test propounded by Gray J of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 as “a particularly useful one” such test being as follows:
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.
[88] In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at page 279 McHugh JA observed as follows:
... Justice is a multifaceted concept. In determining whether justice was done and seen to be done other interests and values, beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost to litigants and the general public in requiring reasons must also be weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: in New South Wales, common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of the case. ...
The Court went on to note, at [89], the importance of the ambit of the dispute before the Court, and at [90], whether the reasons disclosed the “process of reasoning for arrival at [her] ultimate decision” and whether such process is discernible.
In my view, the process of reasoning in the judgment is clearly discernible. Clearly the parents do not like the result arrived at, but the [reasoning] process by which her Honour determined the matter on the evidence before her was and remains plainly discernible. It is akin to the abundant High Court jurisprudence in migration matters (which I will not set out but could provide if it would assist anyone), which speaks about “emphatic disagreement” with a decision. However, that jurisprudence confirms that absent relevant legal error being established, such firm disagreement – without more – is insufficient to warrant appellate interference. I offer this simply by way of analogy or example. In any event, in the light of the principles to which I have referred, I see or discern no relevant error for which the parents contend.
Although not precisely stated, it is implicit in Ground 2 that there was error also in the alleged “interfering with the parents’ exercise of parental responsibility” (emphasis added) For more abundant caution, in this regard, I note the following comments by the Full Court in Valentine v Lacerra.[17] At [42] and [43], the Full Court said (emphasis added):
[42] That is clearly not correct, but it seems that in dispelling that notion his Honour went too far the other way and in effect accepted the submission of the parents that it was their role to determine with whom their children should have a relationship, and that should shape whatever order is made. His Honour’s comments that tend to suggest that the commencement of the decision-making process is a presumption that a parent knows best, and the onus is on a non-parent to persuade the Court that the role of the parent should be usurped and their views disregarded, are not supported by authority, and indeed depart from Full Court authority. For example, in Aldridge & Keaton (2009) 42 Fam LR 369, the Full Court, in considering whether the 2006 amendments to the Act alter the principle that applied previously, said this:
[75] While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
· the unaltered provision dealing with best interests (s.60CA) and the positioning of the section in the Act;
· the recognition in s.65D(1) that ultimately a court should make such parenting order as it thinks proper; and
· that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
[17] Valentine v Lacerra (2013) 49 Fam LR 255.
…
[79] In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
[43] The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s.60CA of the Act). That is not altered by the parent having sole parental responsibility.
Even the wording “interfering”, used in the Ground of Appeal, bespeaks an erroneous view that parents, by virtue of their position qua parents, have a privileged if not almost unassailable position in the decision-making regarding, among other things, their children’s relationships. As understandable as such a view is, plainly the Full Court in Valentine v Lacerra have debunked any such privilege, and highlighted the central role of Courts to make orders that are paramountly in the relevant child’s best interests. This was precisely her Honour’s clear focus; her reasons disclose both the process of reasoning and the weighing of evidence put before the Court that was properly and fairly considered.
For the reasons given, I see no relevant error to support Ground 2.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Associate:
Date: 17 September 2020
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