Padanowska and Padanowski - [2020] FamCAFC 97

FAMILY COURT OF AUSTRALIA

PADANOWSKA & PADANOWSKI

[2020] FamCAFC 97

FAMILY LAW – APPEAL – INTERIM PARENTING – Where interim parenting orders were made after the primary judge made a finding on disputed and untested evidence – Where the finding was critical to other findings made by the primary judge as to what was in the best interests of the children – Where the appellant mother was not given the opportunity to have a hearing on the issue which led to the critical finding – Appeal allowed and matter remitted for rehearing by a judge other than the primary judge – Costs certificates granted.

Family Law Act 1975 (Cth) s 60CC
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Cimorelli & Wenlock [2020] FamCAFC 58
SS & AH [2010] FamCAFC 13

APPELLANT:

Ms Padanowska

RESPONDENT:

Mr Padanowski

INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers & Solicitors

FILE NUMBER:

PAC

5760

2019

APPEAL NUMBER:

EAA

142

2019

DATE DELIVERED:

23 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Watts and Austin JJ

HEARING DATE:

23 April 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 November 2019

LOWER COURT MNC:

[2019] FCCA 3823

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Fermanis

SOLICITOR FOR THE APPELLANT:

Phillip A Wilkins & Associates

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson Lawyers

INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders made on 23 April 2020

The appeal against Orders 9, 10 and 11 made by a judge of the Federal Circuit Court of Australia on 27 November 2019 be allowed.
Orders 9, 10 and 11, as subsequently varied on 19 December 2019, 19 March 2020 and 2 April 2020, be set aside on and from the next return date of this matter before the Federal Circuit Court of Australia.
The matter be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than the primary judge.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Padanowska and Padanowski

Details

AGLC: Padanowska and Padanowski [2020] FamCAFC 97
Case: [2020] FamCAFC 97
Decision Date: 23 April 2020

CaseChat Overview and Summary

The appeal in this case was brought by Ms Padanowska against interim parenting orders made by a primary judge of the Federal Circuit Court of Australia. The primary judge had made findings regarding a document, Exhibit "A", which contained a series of translated text messages. Ms Padanowska asserted that the text messages were sent by the father, Mr Padanowski, and not by her. The primary judge had concluded that the text messages were sent by Ms Padanowska and that finding was critical to his decision that it was in the best interests of the children to remain with their father with limited supervised time with the mother. The mother argued that she had not been given the opportunity to have a hearing on the issue which led to the critical finding.

The legal issues before the Full Court were whether the appeal against certain interim parenting orders should be allowed, and if so, whether the matter should be remitted for rehearing before a different judge. The Full Court found that the appeal should be allowed because the mother had not been given the opportunity to have a hearing on the issue which led to the critical finding. The Full Court also agreed that the matter should be remitted for rehearing before a different judge.

In reaching this decision, the Full Court considered the reasoning of the primary judge and the importance of the text messages in reaching his conclusion. The Court noted that the primary judge had made findings that were critical to his decision but had also indicated that he did not make a final finding about the authorship of the text messages. However, the Full Court found that the primary judge had in fact made a final finding about the matter and had not intended to revisit it. The Full Court held that the mother had not been given the opportunity to have a hearing on the issue, and thus the appeal should be allowed and the matter remitted for rehearing before a different judge.

The Full Court granted costs certificates to both parties in relation to the appeal and the rehearing, as the appeal succeeded on an error of law. The orders set aside the challenged interim parenting orders and remitted the matter to the Federal Circuit Court of Australia for rehearing before a different judge.

Orders