Padanowski & Padanowska (No 2)

[2020] FamCAFC 157

FAMILY COURT OF AUSTRALIA

PADANOWSKI & PADANOWSKA (NO. 2) [2020] FamCAFC 157

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Expedition – Interim parenting orders – Where the applicant father acted promptly in filing a Notice of Appeal and an application for expedition – Where the appeal is likely to be heard by a single judge and that would give the matter the appropriate degree of expedition – Application dismissed.

Family Law Act 1975 (Cth) s 94AAA

APPLICANT: Mr Padanowski

RESPONDENT: Ms Padanowska

INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

FILE NUMBER: PAC 5760 of 2019

APPEAL NUMBER: EAA 78 of 2020

DATE DELIVERED: 26 June 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 26 June 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 10 June 2020

LOWER COURT MNC: [2020] FCCA 1502

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Phillip A Wilkins & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

Orders made on 26 June 2020

1. The Application in an Appeal filed on 17 June 2020 be dismissed.

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 Padanowski & Padanowska (No. 2) 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
SYDNEY

Appeal Number: EAA 78 of 2020
File Number: PAC 5760 of 2019

Mr Padanowski

Applicant

And

Ms Padanowska

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 17 June 2020, Mr Padanowski (“the father”) seeks expedition of his appeal against interim parenting orders made by a judge of the Federal Circuit Court of Australia on 10 June 2020.

2. The father and Ms Padanowska (“the mother”) are the parents of two young children who were born in 2016 and 2018 (“the children”).

3. Parenting proceedings were commenced when an Initiating Application was filed by the mother on 11 November 2019. Amongst the orders sought in that application was an order for the recovery of the children who were at that time in the care of the father. Interim parenting orders were made on 27 November 2019, which amongst other things, required the mother to attend upon a psychiatrist. The children were to live with the father and spend limited supervised time with the mother.

4. An appeal from those orders was filed by the mother on 20 December 2019, and heard on 23 April 2020, when the orders on 27 November 2019 were set aside on and from the next return date before the Court.

5. The matter came back before the Federal Circuit Court of Australia on 27 May 2020 and was heard by the primary judge on 1 June 2020. On 10 June 2020, her Honour ordered that the children live with the mother, who was to have sole parental responsibility for them, and spend time with the father.

6. The father, as can be seen, acted promptly in filing a Notice of Appeal on 12 June 2020, and in bringing this application for expedition.

7. I take into account that these are parenting proceedings involving small children, and ordinarily, they should be heard as quickly as possible. The reality is, however, that there are other appeals pending also in relation to small children and some in circumstances that require attention more urgently than these children.

8. It is relevant to take into account that a report from the single expert appointed by the Court to report on the parenting issues in this matter is due in about four weeks and it is hoped that at that time the matter will be promptly fixed for a final hearing, which would be in everyone’s interests.

9. It is, of course, not in the children’s best interests for there to be constant shifts in their primary care. The primary judge found that until November 2019, when the father unilaterally took the children into his care, they had the benefit of day to day care by the mother (at [108] and [127]). That finding seems not to be challenged in the father’s appeal.

10. The children have now been returned to the mother’s care because the orders of the primary judge have been complied with. There is, however, an application for a stay of those orders listed before the primary judge on 29 July 2020. It is of concern to me that this appeal is likely to be subsumed by events in the Federal Circuit Court of Australia, given that even with the best will in the world, it is unlikely to come on for hearing before September 2020. Nonetheless, it would be desirable for there to be a final hearing as soon as possible and that there be few changes in the children’s primary care prior to time. However, the outcome of the stay application is a matter for the primary judge and not for me.

11. In considering whether or not to expedite particular matters, the Court must have regard not only to the particular proceedings that are before it, but also to all the other proceedings that are pending and awaiting dates for the hearing of their appeal. Expediting a matter necessarily means that an appeal already awaiting a hearing date is then displaced in the queue.

12. I also take into account that whilst it is very much a matter for the Chief Justice, I consider it likely that this is a matter where a direction will be made that the appeal be heard by a single judge (s 94AAA(3) of the Family Law Act 1975 (Cth)). In the ordinary course, appeals listed before a single judge come on for hearing much more quickly than appeals before a bench of three for obvious reasons. That in my view would give this matter the appropriate degree of expedition.

13. I am not satisfied otherwise that this is a matter that should be heard in priority to other matters awaiting appeal. Accordingly, the father’s application for expedition is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 26 June 2020.

Associate:

Date:  29 June 2020