PADANOWSKA & PADANOWSKI - [2019] FCCA 3823

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADANOWSKA & PADANOWSKI

[2019] FCCA 3823

Catchwords:
FAMILY LAW – Interim parenting proceedings – risk to children – text messages relating to inability to cope with children.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MS PADANOWSKA

Respondent:

MR PADANOWSKI

File Number:

PAC 5760 of 2019

Judgment of:

Judge Myers

Hearing date:

27 November 2019

Date of Last Submission:

27 November 2019

Delivered at:

Parramatta

Delivered on:

27 November 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Wilkins

Solicitors for the Respondent:

Mr Sui

ORDERS

Pursuant to section 11F of the Family Law Act 1975 the parties attend a child dispute conference with a family consultant in the Parramatta Registry on 11 March 2020 at 10am AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born in 2016 and Y born in 2018 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
A Language G Interpreter is requested for the mother next occasion, at the Limited Issue Report interview and for the Child Dispute Conference.
Pursuant to s.62G (2) of the Family Law Act 1975 the parties attend upon a family consultant nominated by the Manager, Child Dispute Services in the Parramatta Registry on a date and time to be advised for the purposes of the preparation of a Limited Issues Report, that comments upon whether the mother’s mental health concerns place the children at risk of harm
The parties are granted leave to issue more than five subpoena.
Translated text message communication between the parties are received into evidence. They will form Exhibit “A” in the proceedings.
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.
The parents be prevented by injunction from physically disciplining the child and allowing anyone else to do so.
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.
For the purposes of collecting and returning the children to and from the mother, the father will cause the paternal grandfather…

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.

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Details

AGLC: Padanowska and Padanowski [2019] FCCA 3823
Case: [2019] FCCA 3823
Decision Date: 27 November 2019

CaseChat Overview and Summary

In interim parenting proceedings before Judge Myers, the dispute concerned the risk to the children, X and Y, arising from allegations regarding the mother's mental health and her ability to cope with the children. The court considered text messages exchanged between the parties, which were translated and admitted into evidence as Exhibit "A".

The court was required to determine whether the mother's mental health concerns placed the children at risk of harm, and to make interim orders regarding the children's living arrangements, time spent with each parent, and the supervision of the mother's time with the children. The court also considered the appointment of an Independent Children's Lawyer and the attendance of the parties at a child dispute conference and for the preparation of a Limited Issues Report.

Applying principles of family law, the court made several interim orders. These included the appointment of an Independent Children's Lawyer, the attendance of the parties at a child dispute conference and for a Limited Issues Report focusing on the risk of harm from the mother's mental health, and the admission of translated text messages into evidence. The mother was ordered to attend her psychiatrist with a copy of the text messages and to explain their alleged origins. An injunction was granted preventing physical discipline of the children. Pending further order, the children were to live with the father and spend supervised time with the mother. The matter was adjourned for an interim hearing.

Orders

Orders of the court

Pursuant to section 11F of the Family Law Act 1975 the parties attend a child dispute conference with a family consultant in the Parramatta Registry on 11 March 2020 at 10am AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court.

Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born in 2016 and Y born in 2018 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

A Language G Interpreter is requested for the mother next occasion, at the Limited Issue Report interview and for the Child Dispute Conference.

Pursuant to s.62G (2) of the Family Law Act 1975 the parties attend upon a family consultant nominated by the Manager, Child Dispute Services in the Parramatta Registry on a date and time to be advised for the purposes of the preparation of a Limited Issues Report, that comments upon whether the mother’s mental health concerns place the children at risk of harm

The parties are granted leave to issue more than five subpoena.

Translated text message communication between the parties are received into evidence. They will form Exhibit “A” in the proceedings.

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.

The parents be prevented by injunction from physically disciplining the child and allowing anyone else to do so.

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 D Street, Suburb E.

11.

For the purposes of these orders, the mother’s time shall at all times be supervised by the mother’s friend Ms F.

12.

The solicitor for the Applicant is to cause Ms F to file with the court an undertaking to supervise the mother’s time by 4pm tomorrow.

13.

The matter is adjourned to 16 December 2019 at 2:00pm for Interim Hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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