Gronow v Gronow

1. The Application in a Proceeding filed 21 January 2026 is otherwise 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 20 January 2026, final parenting orders were made in these proceedings and written reasons for judgment delivered ("the final parenting judgment").[1] On 21 January 2026, the mother's solicitor filed a Notice of Appeal[2] which included 45 grounds of appeal. On the same date, the mother's solicitor also filed an Application in a Proceeding seeking a stay of the final parenting orders ("the stay application") and that the application be heard urgently. An affidavit of the mother's solicitor Ms Spizzo was filed in support of the stay application on the same date.
2. The stay application merely seeks an order for stay of all of the final orders. It does not propose any terms upon which the mother says the stay should be granted.
3. I heard the stay application on 23 January 2026, being satisfied it needed to be determined urgently, as the Court had ordered that the child live with the father and a changeover of care be effected on 27 January 2026.
4. The Independent Children's Lawyer ("ICL") and the father both oppose a stay of the final orders. The father filed an affidavit on 22 January 2026 upon which he relied for the purposes of determination of the stay application. As the affidavit was missing a page when it was uploaded to the Commonwealth Courts Portal, the same affidavit was refiled on 23 January 2026. There was no opposition to the father's complete affidavit filed 23 January 2026 being read in evidence.
5. The affidavit of the father contained a serious statement at [17], relevant to the issue of the bone fides of the appeal. He stated that during a phone conversation between the parties on 20 January 2026, the mother stated words to the effect that "everyone wants me to appeal but I don't want to".
6. I raised this evidence with Counsel for the mother at the hearing of the stay application, stating that if the statement attributed to the mother was true, it suggested that the mother was being pressured or influenced by others to appeal. As this was a serious matter, I invited the mother as a matter of fairness to adduce rebuttal evidence if she wished. Counsel initially stated the mother would have wanted to respond to the evidence, but that time had prevented it. I clarified that I was prepared to give leave for the mother to give oral evidence. After the hearing was adjourned briefly, Counsel for the mother then indicated that the mother did wish to give oral evidence.
7. The evidence of the mother was that she had initially been conflicted about whether to appeal because the proceedings had been going on for 18 months, but that she had confirmed her position to appeal in the final part of the text message thread which was not annexed to the father's affidavit. The final thread of the text messages between the parties was received in evidence as Exhibit A2.
8. Counsel for the father took responsibility for the omission of the final part of the message thread from the father's affidavit. The mother also gave other oral evidence in relation to other parts of the father's affidavit, including significant admissions about the conversation she had with the father on 20 January 2026.
9. During the hearing, Counsel for the mother and ICL made their submissions orally. Without opposition, Counsel for the father relied on a short written outline of submissions received on 23 January 2026 and made brief oral submissions.

1. Determination of a stay application is governed by rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") and uncontroversial legal principles usefully summarised in Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 ("Aldridge & Keaton"). At [18], the Full Court stressed the discretionary nature of the determination of a stay and identified the following principles:
   • 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.
2. Usually, the discretion to stay the operation of orders should only be exercised where circumstances exist which justify a departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation, pending the determination of any appeal.
3. Circumstances that may justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or where there is a real risk that it will not be possible for a successful appellant to be restored to his or her former position if the orders are executed.
4. In determining the question referred to at [12] of these reasons, the Court should consider the prospects of the appeal and where the balance of convenience lies between the parties.
5. At [36] of Aldridge & Keaton, the Court observed, citing K & B [2006] FamCA 848; (2006) FLC 93-288, that there is no inflexible presumption that it is necessary to maintaining a status quo pending appeal from orders that change that status quo. In particular, the Court stated that, in parenting cases where the existing arrangements are unsatisfactory, it is not in the child's best interests to maintain them. This reasoning is consistent with the authority of Friscioni & Friscioni [2009] FamCAFC 43 ("Friscioni") to which Counsel for the father referred at [4] of the father's written submissions.

EVALUATION OF WHETHER THE STAY SHOULD BE GRANTED

1. Weighing against the grant of the stay is that the father is entitled to the benefit of the final judgment and is entitled to presume it is correct.
2. The appeal and stay application were filed promptly and, based on the evidence given by the mother at the stay hearing, I accept that she genuinely wishes to proceed with the appeal but also has some reservations. For the reasons discussed below, there is also doubt about whether the appeal will be prosecuted efficiently given the history of the proceedings, the fact that the mother had no clear idea what the cost of the appeal will be as her lawyers have not advised her, and that she has applied for legal aid to pursue the appeal but does not know the outcome of her application.
3. Counsel for the mother submitted that a failure to grant the stay would render the appeal nugatory, while Counsel for the father and ICL submitted otherwise. I am not satisfied that a failure to grant the stay would render the appeal nugatory. If the child transfers to the father's primary care, there will be no reason why the child cannot be returned to the mother's primary care if the appeal is allowed and orders made for the child to live with the mother on a rehearing. The father demonstrated capacity to return the child to the mother after the 6 February 2024 incident and, given the findings about his credit and insight, the Court has confidence the father would comply with subsequent court orders. There is no issue in this case relating to difficulty with reunification between child and mother, given the nature of their existing relationship.
4. While Counsel for the mother submitted that the grounds of appeal were arguable, Counsel for the father and ICL submitted to the contrary. There are 45 grounds of appeal and Counsel for the mother identified that the grounds of appeal essentially related to three types of error:
   • Error of law;
   • Errors of fact and law; and
   • Complaints about weight of evidence or the considerations set out in s 60CC of the Family Law Act 1975 (Cth) ("the Act").
5. The following specific submissions were made on the mother's behalf to relating to the strength of the appeal:

(a) The failure to allow Dr AE, a forensic consultant psychiatrist, to be called by the mother was an error because the Court failed to provide procedural fairness. This submission was said to relate to the Court's finding that the mother's PTSD symptoms were multifactorial and that it favoured one factor over another. These were said to be matters in relation to which the evidence of Dr AE was relevant and that he could have assisted the Court, as a psychiatrist and the Court had prevented any psychiatric evidence being called;

(b) That the Court had erred by limiting the number of days over which the defended hearing would be conducted and refused to transfer the proceedings to Division 1, meaning that the mother had been limited in presenting her case;

(c) That the Court refused to hear from the child's treating therapists, whose evidence was directly relevant to needs of the child and to the child's emotional health and development;

(d) That the Court failed to permit the mother to reopen her case prior to delivery of the final parenting judgment, when it was conceded that the father had not seen the child for five months;

(e) That the Court failed to consider the advantages and disadvantages of each party's proposals, there being no reasoning about the comparative advantages or disadvantages;

(f) That the Court failed to account for or made light of the fact that the mother had adequately cared for the child; and

(g) That the Court had erred in not characterising the father self-harming in May 2024 as an act of family violence. This submission was explained by stating that, although the Court found that the mother had coerced the father to act in self-harm, he was responsible for his own conduct and the Court's finding was analogous to inappropriate victim blaming behaviour.

1. Assessing whether grounds of appeal are arguable requires a primary judge to be open-minded to their own potential errors. I have adopted that position and also considered the submissions by Counsel for the father and ICL about the grounds of appeal.
2. An Application in a Proceeding was filed on 21 August 2025 in relation to the mother seeking to rely on the report of Dr AE. That Application in a Proceeding was listed for hearing promptly to coincide with the trial management hearing already scheduled on 22 August 2025 as the trial was due to commence on 2 September 2025.
3. The background to Dr AE's report was not disputed and is relevant to whether the application by the mother should have been allowed. The mother's solicitor had unilaterally engaged Dr AE to assess the mother and prepare the report. He was not a treating psychiatrist of the mother.
4. The ICL and father both opposed the Court being permitted to rely on Dr AE's report because it was not a single expert report and had been obtained without reference to the other parties.
5. I gave oral reasons for declining to permit the mother to rely on Dr AE's report. They included that the mother was seeking to rely on adversarial expert evidence, obtained relatively late in the proceedings, was not in compliance with Chapter 7 of the Rules and there was no information available about what materials had been sent to Dr AE for the purpose of expressing his views about the mother's mental health diagnosis and its cause.
6. The Court also gave reasons related to the domino effect that would inevitably occur if leave were granted to rely on the report, as the other parties would need opportunity to respond, may expose the mother to a further assessment and inevitability would force adjournment of the defended hearing which had been appointed about eight weeks earlier.[3] In short, the Court concluded that it was not in the child's best interests or in the interests of the administration of justice to grant leave, particularly in circumstances where the mother was calling her treating psychologist Ms R in relation to her mental health.
7. At the hearing of the stay application, Counsel for the mother submitted that the single expert rules did not apply and that leave to call Dr AE's evidence was not required. This submission ignores and is contrary to the terms of Rule 7.01, 7.02 and 7.03 of the Rules.
8. When the Court limited the number of days of trial and refused to transfer the proceedings to Division 1, it did so in the circumstances where the Application for Review filed 2 October 2024 had not been determined for a lengthy time and there was time available in September 2025 in Division 2 to conduct the final hearing. At the time, if the proceedings were simply remitted to a case management list either in Division 1 or Division 2, I had been informed based on my Associate's enquiries with the relevant case management judges, that it would be approximately 9 - 12 months before a final hearing could be allocated to the matter.
9. In the circumstances described at [27] of these reasons it was in the interests of the child and the administration of justice to proceed with a hearing in Division 2 in September 2025. In any event, it was conceded that the mother desired the final hearing to occur sooner rather than later. In exercising the powers as the Court did, no final judgment was made and this ground appears weak.[4]
10. The child's diagnoses were not in dispute, and Counsel for the father and ICL did not seek to cross-examine any of the child's treaters. Accordingly, the Court made orders to ensure that the unchallenged evidence came before the Court efficiently, by requesting the ICL to seek reports and records pursuant to subpoena. Counsel for the mother was heard about this procedural issue and ultimately did not press for the witnesses to be called until he made an oral application concerning Ms B, on 5 September 2025.
11. On 5 September 2025, shortly before he was due to close the mother's case, by oral application, counsel for the mother then sought to call an expert to address the issue of the psychological impact on the child of separation from the mother. It is significant that the relevance of this issue was only raised very late in the mother's case.
12. The Court heard the mother's successive oral applications about calling witnesses relating to the issue at [30] of these reasons,[5] each of the witnesses approached by the mother's solicitor after 5 September 2025 were either unqualified or could not provide a report for weeks if not months.
13. The Court requested that the ICL ascertain if the child's current treating paediatrician and former paediatrician would be able to give evidence in the foreseeable future about the issue at [30] of these reasons. As Dr E, the child's original treating paediatrician in New South Wales was the only expert available and, it being highly undesirable to delay the part heard trial indefinitely, especially as further hearing time was scarce, the Court granted leave to the ICL to call Dr E on subpoena. Dr E gave oral evidence including cross-examination by reference to relevant terms of reference and materials included in a settled index of documents. His evidence was considered and reasons have been given in the Court's judgment relating to the same.
14. The manner in which the Court conducted the proceedings in relation to the late oral application made on 5 September 2025 and after was in accordance with the principles relating to conducting child-related proceedings and the overarching purpose of the Act and Rules.[6] Extensive oral reasons were given in relation to the refusal to adjourn the trial indefinitely and those reasons are now published.[7]
15. The approach the Court took involved the exercise of procedural powers on a discretionary basis and was a reasonable course to take, including because the ICL opposed the mother's oral application.
16. I accept that a refusal to permit a party to reopen their case following judgment being reserved may constitute an error of law. However, as such determination is inherently a discretionary determination, the principles in House v The King (1936) 55 CLR 499 apply and, unless it can be said that no reasonable judicial officer would have declined to give leave to reopen, the ground will not succeed. I gave extensive reasons for declining to reopen and it will be for others to decide if they are reasonable or otherwise show error. However, it is overly simplistic to submit, as Counsel for the mother did, that refusal to reopen was in error because the father had not seen the child in five months. The evidence conceded was that the father had not seen the child in person in Adelaide for that period. The uncontroversial fact was that he had seen and communicated with the child by audio-visual means over FaceTime. The father gave evidence at the final parenting hearing that his funds were exhausted and he could not afford to continue visits to Adelaide. Furthermore, as stated in the ex tempore reasons given on 20 January 2026, there was ample evidence about the many considerations which informed the child's best already before the court.
17. Concerning the submission referred to at [19(e)] of these reasons, I agree with the submission of Counsel for the father, supported by the ICL, that the Court assessed the parties' competing proposals in the section of the reasons headed "Determination". Whether the reasoning adequately addressed the competing proposals will be for others to determine and in the context that the final assessment is a discretionary one.[8] Further, that the reasoning in the entire judgment informs the assessment of the competing proposals and that there is no requirement to make explicit findings on every piece of disputed evidence that may inform the assessment of the comparative benefits of the proposals.[9]
18. The submission concerning an alleged failure to give weight to the adequacy of the mother's physical care of the child,[10] does not appear particularly strong because the weight attributed to this consideration is a matter of discretion and the adequacy of the mother's physical care is only one of the considerations to be taken into account. It is well settled that complaints of this nature do not amount to legal error unless the threshold of unreasonableness is met.[11]
19. The submission that the Court failed to make a finding that the father perpetrated family violence by self-harm with a knife is incorrect. The Court found at [39] of the final parenting judgment that the father's conduct of self-harm with a blade was family violence, the context of which is in part referred to at [45] of the final parenting judgment.
20. The remaining grounds of appeal not individually addressed by Counsel for the mother are voluminous and are mostly complaints about findings of the Court based on asserted inappropriate weight being given to evidence. Such grounds are recognised as being more difficult to establish, particularly where the findings were influenced by the Court preferring the evidence of the father.
21. For the foregoing reasons, the grounds of appeal do not appear to be particularly arguable. I note that Counsel for the ICL agreed with the submissions on behalf of the father to this effect. As the ICL has duties to the child and the Court, the position of the ICL carries some weight.
22. I agree that considerable weight needs to be given to the desirability of limiting the frequency of any change in a child's living arrangement and I accept that a failure to grant a stay may involve the child potentially being subjected to changes to treatment and therapeutic regimes unnecessarily in the event the appeal succeeds. However, I do not accept the evidence of Ms Spizzo that the changes may cause irreparable harm as this was contrary to Dr E's evidence before the Court,[12] nor does the evidence before the Court rise to demonstrating irreparable harm due to separation from the mother. Ms Spizzo's personal view about this lacks any probative weight. Rather, when cross-examined during the final hearing, the CCE expressed the view that the child would cope with separation from the mother because of the strength of the child's relationship with the father and paternal family. Further, Dr E gave evidence that the impact on the child was not predictable and, by inference, it could be mitigated.[13]
23. The desirability of limiting changes and disruption for the child is also to be weighed in the context that prediction or speculation about the outcome of an appeal is difficult, but is logically linked to the strength of the grounds of appeal. In the circumstances where the appeal grounds do not appear particularly arguable, I temper the weight given to this consideration in the context of what is in the child's best interests, consistent with the passage to which I was referred in Friscioni.
24. The child's best interests were determined to require that the child live with the father because the circumstances prior to final judgment were not satisfactory as the child's developmental, psychological and emotional needs were not being met by the mother and because her mental health symptoms posed some risk of harm to the child. I agree with the submissions made by Counsel for the ICL that the mother's statements to the father on 20 January 2026 and her oral evidence on 22 January 2026 reflected a continuation of her lack of child focus and melding of her needs with that of the child.[14] She admitted saying to the father that she knew the child's needs would be met and maintained that she would not spend time with the child in New South Wales due to financial reasons. However, her Counsel then suggested that the Court could grant the stay on terms that the child spend time with the father in New South Wales and the mother would comply with such orders, an outcome requiring her to meet the cost of travelling with the child. The positions were inconsistent because the cost of her travelling to New South Wales to spend time with the child pursuant to the final orders would be the same or similar. This raises real concern about whether the mother is being properly advised, understands advice being given or would comply with an order to travel with the child to New South Wales to spend time with the father pending the appeal.
25. I accept the submissions on behalf of the father that the way the mother's case has been conducted is prolix with creeping of positions along with late interlocutory and oral applications. Further example of the prolix conduct of the mother's case are the 45 grounds of appeal upon which Counsel for the mother maintained reliance. It is my understanding that appeals are not usually permitted to be conducted on so many grounds. Further, the grounds not specifically addressed relate to weight given to evidence or challenges to facts found which usually do not result in a successful appeal unless the weight given or findings made were not reasonably open.[15]
26. The latest example of the mother's position creeping or changing relates to the stay application itself. Her Application in a Proceeding sought a stay of all the final orders, yet when it was drawn to her Counsel's attention that this would mean there would be no parenting orders in relation to the child spending time with the father, Counsel submitted that the Court could grant the stay on terms which required the child to spend time with the father either in Adelaide or New South Wales. Further, Counsel for the mother added that the mother could or would seek expedition of the hearing of the appeal, although that had not been previously sought.
27. I was told that the Appeals Registry advised that the usual timeframe from filing to hearing the appeal was between six and nine months. This was not challenged. Such a period is a significant length of time for the continuation of what were found to be unsatisfactory arrangements for the child, particularly because the mother made no realistic proposal for the child to spend time with the father in the event that the stay is granted.

1. Taking into account all the relevant principles discussed above, I consider that the balance lies in refusing the stay. The significant weight that would ordinarily be attributed to the desirability of avoiding frequent or unnecessary changes for the child is outweighed by:
   • The entitlement of the father to presume the judgment is correct;
   • The assessment that the appeal does not seem particularly arguable;
   • Recognition of the child's best interests, including that the previous circumstances for the child are not satisfactory or in his best interests, and that the mother has reservations about the appeal, or at least there is doubt about whether the appeal will be prosecuted efficiently;
   • There being no probative evidence that the child would be harmed or could not cope with another change of primary care if the appeal succeeds;
   • No confidence that the mother would travel with the child to allow time with the father pending an appeal even if the stay were granted on terms; and
   • There being a reasonable basis to be concerned that the conduct of the appeal on the mother's behalf would be prolix or delayed for considerable time, in circumstances where the mother has no understanding of the costs involved in prosecuting the appeal and has applied to legal aid to fund the appeal where such funding may not arise.
2. There will be an order dismissing the stay application and discharging the interim stay.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

[1] Pittman & Pittman (No 2) [2026] FedCFamC2F 2.

[4] Charton & Sedgley (No 2) [2024] FedCFamC1A 76 at [6] to [8].

[5] Orders made 5 September 2025; Orders made 10 September 2025; Orders 1 and 2 of the Orders made 11 September 2025.

[7] Pittman & Pittman [2025] FedCFamC2F 1372.

[8] Bennett & Bennett [1990] FamCA 148.

[9] Homewood & Parkinson [2021] FedCFamC1A 79 at [26]; Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; Takenaka & Maddox [2025] FedCFamC1A 243.

[11] House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.

[12] At [97] of the final parenting judgement.

[13] At [105]-[110] of the final parenting judgement.

[14] Admission during oral evidence to the effect of statements in father's affidavit at [18].

[15] House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.