PADANOWSKA & PADANOWSKI (No.2) - [2020] FCCA 1502

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADANOWSKA & PADANOWSKI (No.2)

[2020] FCCA 1502

Catchwords:
FAMILY LAW – Interim parenting – competing live with applications – allegations of self-harm and harm to the children – allegations of threats of harm – allegations of family violence – assessment of risk – parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CC, 60CG

Cases cited:

Cimorelli & Wenlack [2020] FamCAFC 58

Eaby & Speelman [2015] FamCAFC 104

Goode v Goode (2007) 36 FamLR 422

M v M(1988) 166 CLR 69

Marvel v Marvel [2010] FamCAFC 101

Pinson & Pinson (No.2) [2020] FamCAFC 111

SS v AH [2010] FamCAFC 13

Salah& Salah [2016] FamCAFC 100

Applicant:

MS PADANOWSKA

Respondent:

MR PADANOWSKI

File Number:

PAC 5760 of 2019

Judgment of:

Judge Obradovic

Hearing date:

1 June 2020

Date of Last Submission:

1 June 2020

Delivered at:

Parramatta

Delivered on:

10 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Fermanis

Solicitors for the Applicant:

Philip Wilkins & Associates

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:	Barry Nilsson Lawyers
Appearing for the Independent Children's Lawyer:	Ms Rutkowska
Solicitors for the Independent Children's Lawyer:	Ark Law Lawyers

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

The mother shall have sole parental responsibility for X born in 2016 and Y born in 2018 (“the children”).
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)Commencing 20 June 2020 each alternate weekend thereafter from 10am on Saturday until 5pm Sunday;
(b)Commencing 17 June 2020 and each Wednesday thereafter from 12noon until 4pm;
(c)On Orthodox Christmas from 4pm 7 January until 4pm 8 January;
(d)On each of the children’s birthdays from 2pm until 6pm unless the children are otherwise with the father;
(e)From 10am until 5pm on Father’s Day in the event the children are not otherwise spending time with the father; and
(f)At any such other time as agreed between the parties.
The children shall spend additional time with the mother as follows:
(a)From 10am until 5pm on Mother’s Day;
(b)On each of the children’s birthdays from 10am until 2pm unless the children are otherwise with the mother; and
(c)On Orthodox Christmas from 10am 6 January until 4pm 7 January.
To facilitate time between the children and each parent, changeover shall occur in the foyer at Suburb B Police Station.

IT IS NOTED that publication of this judgment under the pseudonym is Padanowska & Padanowski (No.2) approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5760 of 2019

MS PADANOWSKA

Applicant

And

MR PADANOWSKI

Respondent

REASONS FOR JUDGMENT

Introduction

These interim proceedings relate to parenting orders in respect of the children X born in 2016 and Y born in 2018 (“the children”).
The applicant in these proceedings is the mother, Ms Padanowska born in 1985 and the respondent is the father, Mr Padanowski born in 1980.
The primary issues in dispute between the parents are:
a)Parental responsibility; and
b)The…

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 & PADANOWSKI (No.2)

Details

AGLC: PADANOWSKA & PADANOWSKI (No.2) [2020] FCCA 1502
Case: [2020] FCCA 1502
Decision Date: 10 June 2020

CaseChat Overview and Summary

In *Padanowska & Padanowski (No.2)*, the Federal Circuit and Family Court of Australia considered competing interim applications for children to live with each parent. The proceedings were marked by serious allegations, including threats of harm to the children, self-harm by one parent, and instances of family violence.

The central legal issues before the court were the assessment of risk to the children and the determination of parental responsibility on an interim basis. The court was required to weigh the competing claims of the parents and make findings regarding the immediate safety and welfare of the children pending a final hearing.

Obradovic J applied the principles of the *Family Law Act 1975* (Cth), particularly focusing on the paramountcy of the child’s best interests. The court considered the evidence presented regarding the allegations of harm and family violence, assessing the credibility of the parties and the potential risks involved. The judge emphasised the need for a cautious approach when allegations of harm are raised, requiring sufficient evidence to justify any interim orders that might impact the children's living arrangements or parental responsibility. The court's reasoning involved a careful balancing of the need to protect the children from harm against the importance of maintaining meaningful relationships with both parents, where safe to do so.

Orders