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 payment under that Act to each of them in respect of costs incurred by them in relation to the new trial ordered.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Padanowska & Padanowski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 142 of 2019
File Number: PAC 5760 of 2019

Ms Padanowska

Appellant

And

Mr Padanowski

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Watts J

Ms Padanowska (“the mother”) appeals particular interim parenting orders made by the primary judge on 27 November 2019.
The orders that are challenged are Orders 7, 9, 10 and 11 which are in the following terms:
(7)The mother is to attend upon her psychiatrist to whom she has been referred by her GP:
(a)The mother is to provide to the psychiatrist a copy of Exhibit “A” in the proceedings.
(b)The mother is to explain to the psychiatrist that the text messages on the left hand side are alleged to be the mother’s messages and the text messages on the right are alleged to be the father’s text messages.
…
(9)Pending further order, children [X] and [Y] will live with the father and spend time with the mother each week from 9am on Tuesdays to 5pm on Wednesdays and from 9am on Friday to 12noon on Saturday every week.
(10)For the purposes of collecting and returning the children to and from the mother, the father will cause the paternal grandfather or another servant or agent to collect and return the children from and to [C Street, Suburb D].
(11)For the purposes of these orders, the mother’s time shall at all times be supervised by the mother’s friend [Ms F].
(As per the original)
The challenge to Order 7 is nugatory, given that the mother has already complied with it and counsel for the mother concedes that was so.
Mr Padanowski (“the father”) now concedes that the appeal should otherwise be allowed in relation to Orders 9, 10 and 11. For reasons that I will shortly explain, I agree that an appeal against these orders should be allowed.
The mother, having conceded that it would be impossible for us to re-exercise the discretion, sought, and the father agrees, that the matter should be remitted for rehearing before a different judge to the primary judge and Orders 9, 10 and 11 should be set aside on and from the next return date before the Federal Circuit Court of Australia. I again agree for reasons that I will also shortly explain.
On 27 November 2019, the primary judge made orders placing the parties’ two children of the marriage, child X, born in 2016 (then aged three) and child Y, born in 2018 (then aged 15 months), with the father who had retained them after a very recent separation from the mother. The mother, up until that time, had been their primary caregiver. The mother gave evidence about a history of family violence, which the father disputed. The father alleged that the mother had mental health issues, which the mother disputed.
Central to his Honour’s conclusion that it was in the best interests of the children, in the short term, to leave them with their father, was the treatment by the primary judge in the reasons for judgment of a document which became Exhibit “A”. That document was a string of text messages that had been translated from Language G to English and were described by the primary judge in the following way:
22.The messages detail that the mother has assaulted the children. They detail that the mother has threatened the children and that she mentally and physically – she cannot cope. They talk about the mother suffering stress as a result of her two children doing such things as throwing dirt on the ground, throwing washing around, doing things that kids often do, but it has caused the mother more than the usual frustration such that she has hurt them, hit them, stripped them, and a range of other reactions. The messages are really concerning.
The mother asserted that what appeared to be text messages sent by her from her mobile phone were in fact text messages that the father had sent to himself, having had access to her mobile phone.
The father denied that he was the author of the text messages which, on their face, had been sent by the mother.
In relation to the mother’s allegation of family violence against the father, the primary judge said that he could not make any findings about that history.
The Full Court in SS & AH [2010] FamCAFC 13 at [88] said:
…findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
But that is not to say that at an interim hearing a primary judge should ignore pertinent risks to a child based on serious allegations (Cimorelli & Wenlock [2020] FamCAFC 58 at [80]–[81]).
The mother asserted during the appeal that a fair reading of the reason for judgment overall was that, notwithstanding caveats in his Honour’s reasons, his Honour had in fact made a final finding that the mother had sent the text messages. Without the necessity to go through the multiple examples in the reasons for judgment in minute detail, I accept that a fair reading of the judgment taken as a whole, is that the primary judge had made a final finding about that matter. Further, that finding was critical to the other findings in respect of various considerations under s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”), which led his Honour to conclude that it was in the best interests of the children that they remain with their father and that the mother was only to have supervised time with the children.
His Honour at two points in the reasons for judgment indicated that what appeared to be final findings, that the mother was the author of these text messages, were findings “for the purposes of today’s proceedings” (at [26]) (as per the original) and “I [the primary judge] do not make a final finding about it” (at [35]).
At [55] and [56] of the reasons for judgment, the primary judge concluded:
55.No matter whatever orders I make today, there will be further orders and further proceedings. I do not make these orders today with the view that they are going to stand for any long period of time, in fact, I am going to bring the matter back for another interim hearing in December. This matter needs a close eye on it. The Court needs to know what is going on from month to month. So I am not proposing that I make these orders and the matter just remains floating around for the next six months. The matter is going to come back and is going to be re-heard. The Court will look at it again. We are going to see what is happening, we are going to see what is happening with the mother, we are going to see what is happening with the psychiatrist, and we are going to see what the further evidence suggests.
56.I will make an order the mother provide a copy of those text messages, Exhibit “A” to the psychiatrist, because, as I said, maybe these are text messages that the mother did send and she cannot remember sending them because of the circumstance she found herself in. Maybe she disassociated, I do not know, but a psychiatrist might have some view about it. A psychiatrist might provide some insight and some assistance.
Those paragraphs do not suggest that his Honour was proposing to consider a further hearing into who wrote the text messages, despite the reservations I have noted.
Order 13 made 27 November 2019 adjourned the matter “to 16 December 2019 at 2:00pm for Interim Hearing” (as per the original) (emphasis removed).
It is common ground that on 16 December 2019 the matter was further adjourned to 19 December 2019.
Counsel for the mother indicated that the instructions he had from the solicitor for the mother was that the solicitor appeared before the primary judge on 19 December 2019, at which event the primary judge had asserted, that he had made a finding about the authorship of the text messages and that the issue was not to be revisited.
In those circumstances, absent the availability of that transcript at the appeal hearing, the parties agreed that a member of the Court’s staff would listen to the audio of the Auscript recording and provide the Court and the parties with a transcript of the relevant portion of the proceedings on 19 December 2019.
We have now received the part of the transcript which notes that on 19 December 2019 there were discussions between Ms Wilkins, who appeared on behalf of the mother on that day, and the primary judge about the contents of a report that the mother had obtained following Order 7 being made on 27 November 2019. In those discussions, the following exchange took place:
…
MS WILKINS: But the paragraph in which we look at text messages that – that – I still come back to that that’s on the basis that it’s accepted that the mother sent the text messages.
HIS HONOUR: I’ve made findings that she already did.
…
(Auscript recording at 12:52:52 PM on 19 December 2019)
What the primary judge said on 19 December 2019 is diametrically inconsistent with any statements in his Honour’s ex tempore reasons for judgment at [26] and [35] which might imply that the finding might be the subject of a rehearing.
It seems clear that whatever caveats the primary judge placed in his ex tempore reasons for judgment about the finding that his Honour had made, that it was more likely than not that the text messages were sent by the mother, that finding was final and one which his Honour did not intend to revisit.
Accordingly, the mother has not been given any opportunity to have a hearing on the issue as to whether or not it was she, who had sent the text messages. It follows, in my opinion, that the appeal must be allowed and the orders foreshadowed by me at the outset be made.
Both parties have made an application for costs certificates in relation to the appeal and in relation to the rehearing. Costs certificates should be granted because the appeal succeeded on an error of law.

Austin J

I agree with the orders proposed and the reasons given by Watts J.

Aldridge J

I also agree with the reasons given. The Court makes the following orders:
(1)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.
(2)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.
(3)The matter be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than the primary judge.
(4)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.
(5)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.
(6)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 payment under that Act to each of them in respect of costs incurred by them in relation to the new trial ordered.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Aldridge, Watts & Austin JJ) delivered on 23 April 2020.

Associate:

Date: 29 April 2020