QUINN (A PSEUDONYM) -v- CLARKE (A PSEUDONYM) [2025] WASCA 137 (12 September 2025)

1. The child does not have any meaningful relationship with his father, and last spent time with him when the father and mother separated, in July 2016.[3] The father was given the opportunity to participate in the primary proceedings but chose not to do so.[4]
2. The matter was tried before the Family Court of Western Australia, between 12 ‑ 16 February 2024, and judgment was delivered on 3 April 2024. Until just prior to the end of the trial, the mother opposed the appellant communicating with, or spending time with the child. However, before making closing submissions, the mother agreed that certain orders could be made which would allow some limited contact between the appellant and the child. This left a number of other disputed orders to be considered by the trial judge.
3. The trial judge concluded that the interests of the child would best be served by making parenting orders essentially in the terms ultimately proposed by the mother. The grandfather has brought the present appeal against certain parenting orders which he opposed at trial.

1. The appellant has worked as a Commonwealth public servant since 1990. In 2009 he commenced employment in a regional town (the 'Town') while his wife and four oldest sons continued to live in Perth. The appellant would travel between Perth and the Town on weekends. In 2010, one of his older sons moved to live with him in the Town, and in 2011 his wife also moved to the Town to be with him. His three oldest sons remained living in his Perth home.[5]
2. The appellant's wife, Ms F, was diagnosed with cancer in mid‑2015 and passed away in November 2016.[6]
3. The appellant and Ms F identify with the Noongar, Yamatji and Kija peoples.[7]
4. The appellant's grandfather was a Noongar man, and his grandmother was a Kija woman from the Kimberley area of Western Australia.[8] As a child, the appellant's grandmother was removed from her family and placed into the Mogumber mission.[9] As the appellant's grandmother grew up, she did not know where she was from or who her people were until she reached adulthood.[10] The appellant's mother was subsequently born in the Mogumber mission and married an Australian man of English heritage. The appellant had two brothers (one of whom is now deceased) and two sisters.[11]
5. Ms F's mother grew up thinking that she was Yamatji (from the area of the Town), as her family had been removed and placed into a mission in Carnarvon, but they were initially from the Kimberley area.[12] Ms F's father was a Noongar man. Ms F had three sisters.[13]
6. The appellant and Ms F had five sons. One of these is Mr A, who is the child's father. The other sons are Mr B, Mr D, Mr E and Child B. The sons were born between 1986 and 2006.[14]
7. The mother and father commenced a domestic relationship, and began living together in about September 2012. They lived together at the home of the appellant in Perth and, at this time, were both users of illicit drugs.[15] The mother described the father as her 'drug dealer'.[16] However, at the time of trial, the trial judge found that the mother had been drug‑free for many years.[17]
8. In January 2013, the father and the mother moved to the Town where they again lived together in the home of the appellant until March 2014. During this time, the appellant gave the father money to purchase cannabis.[18] In around 2013, the mother became pregnant, and the father commenced being violent towards her.[19]
9. The child was born in January 2014. [20]
10. In January 2016, the father seriously assaulted the girlfriend of his brother, Mr B. This led to Mr B threatening to retaliate against the mother. The mother obtained a Family Violence Restraining Order ('FVRO') for 1 year against Mr B.[21]
11. In mid‑2016, the father and the mother moved to Perth to be with Ms F when she was undergoing cancer treatment, while the appellant remained in the Town for work.[22]
12. At the end of July 2016, there were at least two incidents of family violence against the mother and the child, by the father. One of these incidents involved the father holding a knife to the throat of the mother.[23] This led to the father and mother separating on 28 July 2016.[24] The mother obtained an interim FVRO against the father on 1 August 2016, which was made final on 2 September 2016, and was in force until 4 August 2018.[25] The mother has since sought an extension of this order and the father is currently bound by a 10‑year FVRO protecting the mother from him, until 20 March 2029.[26]
13. The father has two convictions for breaching a restraining order made for the benefit of the mother. The father has been violent to the mother, and since separation has been convicted of committing a violent offence against another female acquaintance.[27] The father has threatened to kill the mother and take the child away from her.[28]
14. Ms F died on 8 November 2016. In the period between 2 September 2016 and her death, the child met with the grandparents once in Kings Park on 11 September 2016.[29] The appellant subsequently contacted the mother, seeking contact with the child and suggesting that the child should have contact with the father.[30] The appellant also tried to make return of the respondent's property from the property in the Town conditional upon access to the child.[31]
15. On 12 November 2016, the appellant visited the home of the mother's sister, and on 25 December 2016 (ie Christmas Day) he visited the homes of the mother's parents.[32] The mother obtained an ex parte interim FVRO against the appellant on 17 January 2017. This was resolved by a two‑year undertaking given by the appellant in July 2017.[33]

Findings regarding the appellant as a role model

1. The appellant presented his case at trial on the basis that he was an appropriate person to have contact with the child to provide information and teaching about the child's Aboriginal heritage. The mother did not accept that the appellant would be a good role model for the child. This included because of the behaviour of his adult sons.[34]
2. Between them, the first four of the five sons have a disturbing history. Mr B has a history of violence against domestic partners. At the time of trial, he was facing charges in the Town. Mr D was serving a 14‑month term of imprisonment at the time of trial.[35] Mr E had spent three months in prison for driving under the influence of alcohol. The trial judge found that Mr E used cannabis and had violent relationships with women.[36] There is also no doubt that the father has a significant criminal record. The 31 offences of which he has been convicted since 2016, and separating from the mother, are set out in detail by the trial judge.[37]
3. The mother gave uncontested evidence about various incidents involving serious domestic violence towards her and others by the father, and by Mr B, over an extended period.[38] The appellant did not dispute this evidence, but stated that both the father and the mother were using 'hard drugs' at the time.[39] The mother accepted that she did use drugs during the relationship with the father, and described the father as her 'drug dealer'.[40] The trial judge found that the mother has now been drug‑free for many years.[41]
4. As well, the trial judge reproduced social media posts apparently authored by Mr E, which demonstrated extremely misogynistic attitudes. The trial judge also referred to a photograph on Mr B's Facebook profile page, which showed Mr B smoking and holding a firearm, with his three‑year-old son holding another firearm, with Mr E in the background.[42]
5. The trial judge accepted that, during a period between January 2013 and March 2014, when the father and the mother cohabited with the appellant and Ms F in the Town, the appellant gave the father money to enable him to purchase cannabis.[43]
6. The appellant conceded that all of his adult children posed a risk of harm to the child. As a result, the appellant indicated that he would consent to injunctions restraining him from bringing the child into contact with them.[44]
7. In particular, the trial judge found that 'the father is likely still using illicit drugs, at least sporadically, which is likely to render his behaviour unpredictable, and he likely associates with persons who also use illicit drugs'.[45] The trial judge recorded that the appellant said that the father avoids him if he is on drugs, but that the appellant still speaks to the father every month or two.[46]

1. The trial judge found that he generally preferred the evidence of the mother to the evidence of the appellant. His Honour gave a number of instances where the evidence of the appellant appeared to be unreliable. The trial judge considered that the appellant had not been candid with the Single Expert Witness and had minimised some of the problems in his family.[47] It was further found that when interviewed by the Single Expert Witness, the appellant had omitted relevant communications in his trial affidavit, and had given inconsistent evidence about how he had obtained addresses of members of the mother's family.[48]
2. The significance of this finding about the unreliability of the appellant's evidence goes beyond the process of fact finding for the purposes of the trial. It is directly relevant to the mother's perception that there is a risk that the appellant might, in the future, acquiesce in the father contacting the child. The trial judge made the following comment about this type of issue, which had arisen in the past:[49]

The Court accepts the mother's evidence that she did not feel safe facilitating more visits [with the appellant] after 12 September 2016. The mother was understandably concerned that the paternal grandfather was continuing to try and facilitate contact between the child and the father, even though he was aware of the Family Violence Restraining Order protecting both the mother and the child, and that the father was using drugs, and had recently behaved violently towards the mother and the child. The Court accepts the mother's submission that the paternal grandfather was prioritising the father's needs to see the child, over the child's safety, in particular as a mechanism for the paternal grandfather to persuade the father to move to [the Town].

1. In a similar vein, the trial judge found:[50]

The mother lacks trust and confidence in the paternal grandfather's capacity to protect the child from the father. The mother's most recent direct experience of the paternal grandfather, after separation, were his attempts to persuade her to permit contact between the child and the father, despite the restraining order protecting the mother and the child from the father, and despite the mother providing the paternal grandfather with a detailed explanation as to why she obtained the restraining order.

1. By the time of closing submissions at the trial, various orders had been agreed or were not opposed. We will refer to these below.
2. There were certain restraints that were agreed concerning the appellant, and the actions that he could take. Orders in the following terms were agreed or not opposed in respect of these restraints:
   1. The paternal grandfather is restrained by injunction and an injunction is hereby granted restraining the paternal grandfather from sharing the mother's postal address, email address or telephone number with any third party without the mother's prior written consent.[51]

1. The paternal grandfather be restrained by injunction and an injunction is hereby granted restraining the paternal grandfather from sharing information about the child with the father or causing or allowing a third party to share this information.[52]
2. Save and except with the prior written consent of the mother, the paternal grandfather be restrained by injunction and an injunction is hereby granted restraining him from:

(a) posting any of the photographs of the child on social media;

(b) attending any education institution that the child may attend including any before or after school care or vacation care; and

(c) bringing the child into contact with any of the following people:

(i) the father;

(ii) [Mr D], born [in] July 1988;

(iii) [Mr B], born [in] February 1986; and

(iv) [Mr E], born [in] August 1998.[53]

1. There was also an order requiring the mother to provide quarterly updates to the appellant:[54]
   1. Commencing no later than three months following the date of these orders and on a three-monthly basis thereafter, the mother provide the paternal grandfather, by email, a brief update on the child including an up‑to‑date photograph and, when they issue, a copy of the child's school report, with any identifying information being redacted.
2. There were orders permitting certain communications from the appellant to the child:[55]
   1. By no earlier than twenty‑one days after the photo book is sent to the child, the paternal grandfather be at liberty to send the child an initial letter, along with a family tree, with the paternal grandfather at liberty to record the name of the father, but there is to be no photographs of the father.
   2. Commencing no later than three months from the date of these orders, the paternal grandfather be at liberty to send the child gifts, letters and cards on a monthly basis and on special occasions, such as the child's birthday, Christmas and Easter, and the mother is to ensure that the gifts, cards and letters are given to the child.
3. There were also agreed or unopposed orders concerning steps which would be taken to facilitate communications from the child to the appellant, if he wished to do so:
   1. In the event that the child expresses a request to respond to the communication from the paternal grandfather pursuant to the previous paragraphs, the mother use her best endeavours to facilitate and encourage the child to continue to do so or request a third party to do so.[56]

1. Commencing 12 months from the date of these orders and in addition to the communicating pursuant to the preceding paragraph, the child communicate with the paternal grandfather in accordance with his wishes and the mother use her best endeavours to facilitate and encourage this contact or request a third party to do so.[57]
2. Commencing 12 months from the date of these orders, the mother ensure that the child has a personal mobile phone which contains the number of the paternal grandfather and will provide the child's phone number to the paternal grandfather and keep him updated in relation to the same.[58]

1. To give effect to the preceding orders, the mother will ensure that the child will be given his own phone and will provide the phone number to the paternal grandfather and keep him updated in relation to the same.[59]

1. The appellant's case identifies four areas of dispute in respect of the parenting orders which the trial judge made. These are as follows:[60]

(a) Monthly Cultural Video Order ‑ the appellant says that he should be at liberty to provide a short video, of no more than ten minutes duration, telling a story related to the child and his family and culture, no more than once per month, and the mother must confirm by email that the child has seen the video. The trial judge did not make any order on this topic.

(b) Paternal Grandfather Video Call Order ‑ the appellant says that the trial judge ought to have ordered that, after six months, the child should communicate with the appellant by video call or other electronic means on one occasion per month, moving to one occasion per fortnight after three months, and continuing thereafter. Instead, the trial judge ordered that, after three months, the appellant communicate with the child via video call once every two months at a time on the last Sunday of each month between 5.00 pm and 6.00 pm AEST with the mother to encourage and facilitate the video calls between the appellant and the child or request a third party to do so.

(c) Nominated Paternal Relatives Video Call Order ‑ the appellant says that after three months the appellant should be at liberty to include any or all of the Nominated Paternal Relatives[61] in the video calls, with prior notice to the mother of the presence of such persons on a call. Instead, the trial judge ordered that the appellant was to ensure that there was no one else present during the telephone or video calls with the child, save and except with the prior written consent of the mother.

(d) Paternal Grandfather Spend Time Orders ‑ the appellant sought 'a suite of face‑to‑face spend time orders with the child, to effectively commence when the child is 12 years of age, and on a progressively increasing basis'.[62] These commenced with a period of one week after 12 months from the date of the order, increasing to one week in the January school holiday period and the entire July school holiday period after 36 months. The trial judge was not prepared to make compulsory spend time orders, but made an order which would facilitate the child spending face‑to‑face time with the appellant if the child wished to do so from 15 years of age.

1. At the oral hearing of the appeal, the appellant's counsel no longer disputed the orders made by the trial judge in respect of the first three areas.[63] This concession was correctly made. The first three types of orders concern matters of detail. The discretionary nature of parenting orders means that there would not be any grounds for interfering with the decisions of the trial judge about whether cultural videos should be provided prior to commencing with video calls; whether the timing of video calls should be slightly different and more frequent; or whether different orders should have been made about who might or might not be present on such a call subject to the consent of the mother.
2. This means that the appeal effectively only concerns the Paternal Grandfather Spend Time Orders.

1. The relevant provisions about parenting orders are contained in pt 5 of the Family Court Act 1997 (WA) (FCA). These provisions have been materially amended since the trial. We will refer to the provisions as they stood at the time of the trial.
2. A parenting order is an order made under pt 5 dealing with a matter that is mentioned in s 84(2) and s 84(1). The matters mentioned in s 84(2) include the time a child is to spend with another person or other persons (paragraph (b)); the communication a child is to have with another person or other persons (paragraph (e)); and any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child (paragraph (i)).
3. The person referred to in s 84(2) may include a grandparent (s 84(2a)), and the communication referred to in s 84(2)(e) includes communication by letter, telephone, email or any other electronic means (s 84(4)).
4. A parenting order in relation to a child may be made in favour of a parent of the child or some other person (such as a grandparent) pursuant to s 85. A grandparent may apply for a parenting order (s 88(ba)).
5. Making a parenting order involves the exercise of a judicial discretion. Section 89(1) provided:

In proceedings for a parenting order, a Court may, subject to sections 70A and 89AB and this Division, make such parenting order as it thinks proper.

1. Section 70A is not presently relevant, as it concerns a presumption of equal shared parental responsibility.[64] The trial judge determined that this presumption should not apply, and (understandably) there is no appeal from that. Section 89AB is also not relevant, because it concerns a parenting plan.
2. There are certain matters which must be considered and taken into account in deciding what parenting order should be made.
3. At the relevant time, s 66A provided that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1. Section 66C(1) provided that:

Subject to subsection (6), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

1. Section 66C(2) stated that the primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Section 66C(3) refers to 'additional considerations' for the purposes of determining what is in the child's best interests. These included:

(b) the nature of the relationship of the child with -

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child)

(h) if the child is an Aboriginal child ...

(i) the child's right to enjoy his or her Aboriginal ... culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(j) any family violence involving the child or a member of the child's family; and

(k) if a family violence order applies, or has applied, to the child or a member of the child's family ‑ any relevant inferences that can be drawn from the order, taking into account the following -

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for the order;

(v) any other relevant matter;

(m) any other fact or circumstance that the court thinks is relevant.

1. It is also necessary to refer to the provision contained in section 66C(7):

For the purposes of subsection (3)(h), an Aboriginal child's ... right to enjoy his or her Aboriginal ... culture includes the right -

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary ‑

(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii) to develop a positive appreciation of that culture.

1. These provisions must be understood in the context of the objects of pt 5. These objects were stated in s 66. Section 66(1) provided:

The objects of this Part are to ensure that the best interests of children are met by ‑

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. As well, it is necessary to refer to certain principles underlying these objects, set out in s 66(2):

The principles underlying these objects are that (except when it is or would be contrary to a child's best interests) ‑

...

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. The purposes of s 66(2)(e) are elaborated in s 66(3):

For the purposes of subsection (2)(e), an Aboriginal child's ... right to enjoy his or her Aboriginal ... culture includes the right ‑

(a) to maintain a connection with that culture; and

(b) to have the support, opportunity and encouragement necessary ‑

(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii) to develop a positive appreciation of that culture.

Trial judge's reasoning - Paternal Grandfather Spend Time Orders

1. The trial judge explained his reasoning in respect of the orders sought by the paternal grandfather for face‑to‑face spend time orders in the following way:[65]

The paternal grandfather applies for a suite of face‑to‑face spend‑time orders with the child, to effectively commence when the child is 12 years of age, and on a progressively increasing basis. In the Court's assessment, pursuant to these orders, the relationship between the child and the paternal grandfather will develop in an organic matter [sic manner]. The Court intends to make orders in the child's best interests, which will facilitate the child spending face‑to‑face time with the paternal grandfather if he wishes to do so but will not compel him to spend face‑to‑face time if he does not wish to do so, from 15 years of age. The Court relies upon the evidence of [Ms Z] and [Mr U] in this respect, to fix an age at which the child is forming some independence of mind.

1. In reaching his conclusion about the appropriate orders to make, the trial judge particularly considered the need for the child to be exposed to Indigenous culture and heritage. The trial judge concluded that 'the child's mental health outcomes are likely to be negatively impacted if he does not have the opportunity for some form of engagement with his paternal indigenous family and culture'.[66]
2. There was certainly general evidence which supported the importance of kinship obligations, and an appreciation of Indigenous culture, as important matters for raising a child of Indigenous heritage. The trial judge specifically extracted evidence of Dr A concerning these matters.[67] There was also other evidence contained in an academic article tendered at trial.[68] However, none of this evidence specifically identified a time by which it would be important for a child to be exposed to his or her Indigenous culture. The highest that the evidence reached in this respect was a short exchange in the cross‑examination of Ms Z (a clinical psychologist who conducted family therapy with the mother and child):[69]

Would you say it's important for Aboriginal children to be exposed to their culture? --- Absolutely.

And would you agree that exposure to their culture at a young age is ideal? --- Absolutely.

So when I say 'young age', I'm talking 10? --- Yes.

So the age [the child] is now. And the implications for not doing it, can you ‑ are you able to tell the court, for children growing into adults, the implications for not engaging them in their culture? --- Well, I mean ‑ ‑ ‑

For their mental health? --- Okay. Well, that [harks] to the benefits of culture. The benefits are your values, your shared customs, the language, understanding where you come from, you know, out of country and in country. There's loads, yes: belonging, identity.

Yes. And the benefits ‑ well, you've had experience with adolescents in the prison system? --- No, I - - -

Sorry? --- - - - worked with - - -

Adults? --- I worked with adults.

In the prison system? --- Yes.

Aboriginal adults?--- Absolutely.

And in your experience, those Aboriginal adults that have not had exposure to their culture at a young age, would you agree that the tendency is for them to have mental health issues? --- Yes, you could do.

Self‑esteem issues? --- Yes.

Tendency to depression? --- Just ‑ you're honing it down to quite specific things. I think we could say that there's a vulnerability to mental health issues.

1. Two observations should be made about this evidence. First, the cross‑examiner was directing the witness to give evidence about what was 'ideal' as a matter of generality. The evidence was not directed to what was preferable, or in the best interests of the child, in the present case. Regrettably, the circumstances in the present case are not ideal and what might be ideal in other circumstances might not be appropriate in the present circumstances. Inevitably, as the trial judge recognised, the history that has been recounted necessitated a balancing of various risks of potential harm to the child. Second, the potential adverse consequences from failing to expose Aboriginal children to their culture was also addressed as a matter of generality. The cross‑examiner did not seek to have the witness distinguish between the degree of risk of the adverse tendency if an Aboriginal child was not exposed to his or her culture at the age of 10 years old as opposed to the degree of risk of such an adverse tendency if the child was not exposed to his or her culture until somewhat later in childhood.
2. Nothing in Ms Z's evidence - or the evidence more generally - suggested that it was necessary for an Aboriginal child's exposure to his or her culture and Indigenous heritage to occur at the age of 10 ‑ 12 years, compared to 15 years.
3. On the other hand, the trial judge accepted that the child's mental health outcomes were likely to be negatively impacted if any orders made to achieve the goal of engaging with his paternal Indigenous family and culture escalated and heightened the mother's trauma, which is likely to have an adverse impact on her parenting capacity, and therefore on the child.[70]
4. Ms Z gave evidence that orders should only be made to allow for contact, subject to the child's wishes, from 16 years old.[71]
5. After conducting family therapy with the mother and child, which had the aim of reunifying the child with the appellant in this case,[72] Ms Z concluded that:[73]

(a) the mother was 'stuck in 2016', her trauma was genuine, and she had genuinely tried during the family therapy process;

(b) while the mother's trauma relates to the father, the paternal grandfather and other family members were there at the time of the trauma, and trauma can generalise;

(c) because trauma deals with the reality of perceptions, the paternal grandfather doing everything he can and apologising will not make any difference, because the mother will not believe the apology; and

(d) the mother was paranoid. Her parents attended and remained outside family therapy for one of the sessions. The mother's suspicion or paranoia would not be alleviated by misleading or incomplete information from the paternal grandfather, including the whereabouts of the father.

Based upon the evidence of [Ms Z], the Court is satisfied that that the mother cannot pick and choose when trauma symptoms manifest. If the child sees the mother in distress, this will negatively impact the child. The impact of the mother's trauma symptoms on the child is a real risk requiring consideration.

1. Consequently, it can be seen that the trial judge specifically considered how to make face‑to‑face spend time orders which took 'into account the mother's trauma associated with her relationship with the father' and framing those orders 'in such a manner which does not heighten or escalate that trauma'.[75]
2. Further, the trial judge also considered that the form of such orders 'must not unreasonably increase the possibility that the existing Family Violence Restraining Order may be breached by the father'.[76] In this respect, the trial judge concluded that:[77]

Given the mother's experience with the paternal grandfather, and on the basis of the available evidence, the mother's concerns about the child being exposed to the father are not unreasonable.

1. This conclusion was based upon the following reasoning of the trial judge:[78]

During the relationship between the mother and the father, the paternal grandfather gave the father money, which he knew the father would use to buy cannabis. The paternal grandfather provided this money to the father, over the objections of the mother. The mother lacks trust and confidence in the paternal grandfather's capacity to protect the child from the father. The mother's most recent direct experience of the paternal grandfather, after separation, were his attempts to persuade her to permit contact between the child and the father, despite the restraining order protecting the mother and the child from the father, and despite the mother providing the paternal grandfather with a detailed explanation as to why she obtained a restraining order.

The mother considers that the paternal grandfather's response in family therapy to her trauma being 'old news' simply reveals his lack of understanding of the impact that the father has had, and continues to have, upon her, and she considers that the paternal grandfather would wish to restore contact or communication between the child and the father.

1. From this analysis, it is apparent that the trial judge carefully considered countervailing considerations about the child's best interests in considering what spend time orders should be made. In particular, he considered and balanced the following:

(a) the need for the child to learn about his Indigenous heritage;

(b) the prospect that spend time orders between the child and the appellant would adversely impact upon the capacity of the mother to look after the child, due to the resurfacing of trauma in the mother; and

(c) the risk that the child would be exposed to the father by the appellant.

1. Having considered these matters, the trial judge concluded that the best way to balance all of these matters, in the best interests of the child, was to make orders which would facilitate the child spending face‑to‑face time with the paternal grandfather from 15 years of age if he wished to do so, but the child would not be compelled to do so.[79] That was specifically consistent with the expert evidence of Ms Z.

Principles of appellate intervention ‑ Parenting Orders

1. In Bondelmonte v Bondelmonte[80] the High Court recognised that it is only an error of the kind referred to in House v The King[81] which will permit an appellate court to interfere with parenting orders made in the exercise of a judicial discretion by a primary judge under the federal equivalent of s 89(1) of the FCA.
2. Kiefel, Bell, Keane, Nettle and Gordon JJ explained why this was so:[82]

A parenting order made under [s 89] involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in [s 66C(2)] are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in [s 66C(3)] require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (citations omitted)

1. In Norbis v Norbis[83] Mason and Deane JJ said that:

If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision‑making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

1. The errors which must be demonstrated as an indispensable condition of a successful appeal are those referred to in the following passage from House v The King:[84]

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Appeal ‑ Paternal Grandfather Spend Time Orders Grounds of appeal

1. The appellant advanced nine grounds of appeal. However, grounds 1 and 7 do not concern the Paternal Grandfather Spend Time Orders. Grounds 5 and 9 only arise if error is established in respect of other grounds, as these concern the re‑exercise of the discretion to make a parenting order. Ground 6 simply refers to grounds 7 and 8 being alternative to grounds 1 to 4. Hence, it is only necessary to initially consider grounds 2, 3, 4 and 8, unless error is established and the discretion under s 89(1) of the FCA needs to be re-exercised.

1. Grounds 3 and 4 are without merit. In effect, they are the obverse of each other. Ground 3 alleges that the trial judge failed to give 'sufficient weight' to matters related to the need of the child to learn about his Aboriginal identity and heritage. Reference is made to s 66(3), s 66C and s 71A of the FCA. Ground 4 alleges that the trial judge gave 'excessive weight' to the mother's trauma associated with her relationship with the father.
2. In Shinohara & Shinohara[85] Williams, Altobelli and Campton JJ observed that:[86]

The weight or importance given to evidence in the exercise of discretion in making parenting orders that promote the best interests of children, or in adjusting property so as to achieve justice and equity, is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge ...

1. In the present case, there is no doubt that the primary judge grappled with each of the issues concerning the importance of the child being educated about his Aboriginal identity and heritage, and weighed these matters against the need to contain and limit the mother's trauma associated with her relationship with the father and his family. Grounds 3 and 4 only identify errors of weight or importance, and are therefore not grounds which attract the operation of the principles in House v The King. No appellable error is established by grounds 3 and 4.
2. This leaves grounds 2 and 8 for consideration.

1. Ground 2 alleges that there was error by the trial judge in making the spend time orders which he adopted, and not the Paternal Grandfather Spend Time Orders, due to the trial judge's failure to make certain factual findings. However, in explaining the substance of the ground, the appellant's counsel said that ground 2 raises whether the trial judge erred in the exercise of his Honour's discretion by making orders which were unreasonable or plainly unjust.[87]
2. The first factual finding which the appellant says the trial judge failed to make is that the trial judge did not find that, on 13 January 2017, the appellant and the father had attended at the home of the first respondent's mother.
3. It is correct that the trial judge did not make this finding. The trial judge particularly said that he could not be satisfied about this factual matter, but that he was satisfied that the mother genuinely believed that it had occurred.[88] However, there is no reason why making a factual finding about this matter was indispensable to, or a precondition of, preferring the spend time orders adopted by the trial judge over the Paternal Grandfather Spend Time Orders. The failure to make this factual finding does not establish any error in the decision of the trial judge to exercise his discretion not to make the Paternal Grandfather Spend Time Orders.
4. The second factual finding which the appellant says that the trial judge failed to make, is that his Honour did not find that the appellant would not comply with injunctions restraining him from bringing the child into contact with his children, including the father.
5. There is a flaw in the way this aspect of the case is framed. It concerns whether the appellant would or would not, in the future, comply with injunctions. It therefore does not concern any past fact about which a certain factual finding could be made. At most, the finding that might be relevant to the exercise of the trial judge's discretion is a finding that there was a risk or likelihood that the appellant would not comply with the injunctions in the future.
6. The trial judge effectively made a finding to that effect. His Honour said that, given the mother's experience with the appellant, and on the basis of the available evidence, the mother's concerns about the child being exposed to the father were not unreasonable.[89] The reference to the mother's experience with the appellant is no doubt intended to pick up the matters which led the trial judge to make the comments, which have been reproduced above, to the effect that the appellant prioritised the father's need to see the child over the child's safety[90] and that the mother lacked trust and confidence in the appellant's capacity to protect the child from the father.[91] The risk that the appellant would expose the child to contact with his father was obviously a matter relevant to the exercise of discretion concerning the Paternal Grandfather Spend Time Orders.
7. The third matter upon which it is alleged the trial judge made no findings is that it is said that the trial judge did not find whether the father would come into contact with the child, or the chances of such contact. For the reasons which we have just mentioned, that allegation is incorrect.
8. The fourth matter is that it is alleged that the trial judge made no findings as to whether the Paternal Grandfather Spend Time Orders would escalate and heighten the mother's trauma or the risk of that trauma. Again, that is not so.
9. As explained previously, the trial judge carefully considered the evidence of Ms Z about the trauma which the mother had suffered. In exercising his discretion to make parenting orders the trial judge specifically stated that he must 'also take into account the mother's trauma associated with her relationship with the father', and that the orders needed to 'be framed in such a manner which does not heighten or escalate that trauma'.[92] Evidently, the trial judge was specifically considering the effect of the trauma, and the extent to which it would be escalated or heightened by the orders proposed by the appellant. The trial judge specifically said that the trauma was 'unresolved, pervasive and recurrent', based upon the evidence of Ms Z and Ms AB (the mother's counsellor).[93]
10. The fifth matter relied upon by the appellant is that he says that the trial judge made no findings as to how any 'escalation and heightening' of the mother's trauma would impact on her capacity to parent the child, or the extent of such impact.
11. Once again, this ground implicitly asserts that a factual finding can be made about the extent to which the mother's trauma would impact on her future capacity to care for the child. As explained, it is fallacious to think that scientific certainty can be applied to a finding about future risk. All that could be said is that the judge was required to consider the risk of the mother's existing trauma causing her adverse difficulty in caring for the child in the future if the Paternal Grandfather Spend Time Orders were made. As already explained, the trial judge specifically took this consideration into account.
12. The sixth matter relied upon is that there was no finding made by the trial judge that the appellant or any of the Nominated Paternal Relatives posed any kind of risk to the child's welfare.
13. That is incorrect to the extent that the trial judge found that the mother's concerns about the child being exposed to the father were not unreasonable, ie there was a risk that the appellant would allow contact between the father and the child.
14. In any event, whether or not the appellant or any of the Nominated Paternal Relatives posed any kind of risk directly to the child's welfare, the trial judge specifically considered that it was necessary to take into account the general trauma which had been caused to the mother, and the extent to which that might be heightened or escalated by further contact with any members of the appellant's family. The consequential effect of this being that the mother would be detrimentally impacted in her ability to care for the child. That was a proper basis for exercising the trial judge's discretion about parenting orders concerning spending time with the appellant.
15. The seventh matter referred to in ground 2 is that the trial judge made no findings as to the mother's capacity to manage her trauma by reference to her current living circumstances in the Eastern States of Australia, the trauma counselling which she had received or to which she had access and her access to family support.
16. This is not correct. As already explained, the trial judge carefully considered the evidence of Ms Z and concluded that 'the court is satisfied that the mother cannot pick and choose when trauma symptoms manifest. If the child sees the mother in distress this will negatively impact the child. The impact of the mother's trauma symptoms on the child is a real risk requiring consideration.'[94]
17. Therefore, none of the alleged non-findings identified in ground 2 were preconditions for concluding that the parenting orders made by the trial judge were in the best interests of the child. In any event, inferred error of the kind identified in House v The King is not established by pointing to factual findings which the trial judge did not make. Rather the question is whether, on the facts, error can be inferred from an outcome which is unreasonable or plainly unjust.
18. In the present case there was no challenge to the trial judge's findings as to the countervailing risks of harm to the child's mental health outcomes as follows:[95]

The Court accepts that the child's mental health outcomes are likely to be negatively impacted if he does not have the opportunity for some form of engagement with his paternal indigenous family and culture. Equally, the Court accepts that the child's mental health outcomes are likely to be negatively impacted if any orders made to achieve this goal escalate and heighten the mother's trauma, which is likely to have an adverse impact on her parenting capacity, and therefore on the child.

1. The parenting orders made by the trial judge sought to balance these risks of harm to the child. The conclusion that the best interests of the child were served by parenting orders which facilitated the child having face‑to‑face contact with the appellant in accordance with the child's wishes from the age of 15 years were not, in all the circumstances, unreasonable or plainly unjust.
2. For these reasons, the matters set out in ground 2 do not establish any error in the exercise of the trial judge's discretion not to make the Paternal Grandfather Spend Time Orders. Error cannot be inferred from the outcome of the trial judge's exercise of the discretion conferred by s 89(1) of the FCA.

1. That leaves ground 8 for consideration. This alleges that the trial judge gave inadequate reasons for refusing to make the Paternal Grandfather Spend Time Orders, and that this constituted an error in law. This ground is particularised by reference to the particulars for grounds 1, 2, 3 and 4. However, for reasons that we have mentioned, only ground 2 could be relevant.
2. In G v O[96] this Court said that: [97]

The fundamental requirement for reasons is to adequately disclose the actual intellectual process which has resulted in a particular determination. Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. (footnotes omitted)

1. In a case such as this one, where a discretion has to be exercised, what is required is the identification of the matters which have been taken into account as relevant to the exercise of that discretion, some explanation as to the weighting given to those matters, and how this weighting contributes to the outcome of the discretionary judgement.
2. In our view, the trial judge has amply satisfied the requirement to disclose the intellectual process for his reasoning. This process is set out in [55] ‑ [66] above. The nature of the balancing exercise which the judge undertakes is identified. The matters that are relevant to the exercise of the discretion are stated. The trial judge has considered the evidence relevant to those matters, and the risks which need to be taken into account for the exercise of the discretion. In our view, nothing further was required from the trial judge. Not only are his Honour's reasons adequate, they are a model of the type of reasons which explain the judicial exercise of a discretion. Ground 8 is entirely without merit.

1. For all of these reasons, the appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Quinn & Clarke [2024] FCWA 59 ('Reasons') [19].

[33] Reasons [89] ‑ [91], [123] ‑ [124].

[51] Reasons [15], order 5. See also Reasons [178] order 5.

[52] Reasons [15], order 20. See also Reasons [178] order 20.

[53] Reasons [15], order 21. See also [178] order 21.

[54] Reasons [15], order 7. See also Reasons [178] order 7.

[55] Reasons [15], order 9 ‑ 10. See also Reasons [178] order 9 ‑ 10.

[56] Reasons [15], order 11. See also Reasons [178] order 11.

[57] Reasons [15], order 13. See also Reasons [178] order 13.

[58] Reasons [15], order 14. See also Reasons [178] order 14.

[59] Reasons [15], order 17. See also Reasons [178] order 17.

[60] Reasons [177], order 16. Reasons [178]. (WAB 7).

[61] This is defined to mean the grandson's uncle Child B, the grandson's paternal great grandfather, the grandson's cousins, Ms C (a great aunt) and Ms CD (a second aunt).

[69] Transcript, Quinn & Clarke [2024] FCWA 59, Family Court of Western Australia, 14 February 2024, 224.

[80] Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 [31].

[81] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505.

[83] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519.

[85] Shinohara & Shinohara [2025] FedCFamC1A 126.

[96] G v O [2018] WASCA 211; (2018) 53 WAR 393 [65].