PADLEY & PADLEY
[2016] FamCAFC 82
•23 May 2016
FAMILY COURT OF AUSTRALIA
| PADLEY & PADLEY | [2016] FamCAFC 82 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim parenting orders suspending his time with the child – Where the mother and Independent Children’s Lawyer conceded that the appeal should be allowed – Where the primary judge erred in finding that there was a risk of harm to the child that would warrant the suspension of time – Where the trial judge failed to consider other options which might have enabled the child to regularly spend time with the father in a safe setting – Orders set aside – Proceedings remitted for re-hearing. FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where an order for costs as between the parties would not be appropriate – Whether appropriate to grant cost certificates – Cost certificates granted to the parties and Independent Children’s Lawyer for the appeal and the re-hearing. |
| Family Law Act 1975 (Cth): s 94AAA(3) |
B and B (Costs Certificates) (2007) FLC 93-339
| Blinko & Blinko [2015] FamCAFC 146 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Mr Padley |
| RESPONDENT: | Ms Padley |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ng |
| FILE NUMBER: | SYC | 1219 | of | 2015 |
| APPEAL NUMBER: | EA | 197 | of | 2015 |
| DATE DELIVERED: | 23 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 18 May 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 November 2016 |
| LOWER COURT MNC: | [2015] FCCA 3576 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Coulton |
| SOLICITOR FOR THE APPELLANT: | Pryor Tzannes & Wallis |
| COUNSEL FOR THE RESPONDENT: | Mr Maurice and Mr Reeves |
| SOLICITOR FOR THE RESPONDENT: | Eleanor Murphy & Company Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Druitt and Ms Rebehy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners Lawyers |
Orders made 18 May 2016
IT IS ORDERED BY CONSENT:
The appeal be allowed.
That Orders 2 and 5 of the Orders made on 26 November 2015 be set aside.
The proceedings be remitted for re-hearing to the Family Court.
IT IS NOTED:
That the application to adduce further evidence in the appeal filed on 28 April 2016 is withdrawn.
IT IS FURTHER ORDERED:
Pending the determination of the remitted hearing and further order of the Court:
(a)All prior parenting orders for the father to spend time with the child X born … 2013 are suspended.
(b)Any time the father spends with the child shall be at the sole discretion of the mother.
That there be no order as to costs.
That the question of costs certificates be reserved.
NOTATION
A. The Court requests that the remitted re-hearing be listed for determination as quickly as can be accommodated.
Orders made 23 May 2016
That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 him in relation to the appeal.
The Court grants to the respondent mother and Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 them in relation to the appeal.
The Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 the parties in respect of the costs incurred by them in relation to the new trial ordered.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Padley & Padley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 197 of 2015
File Number: SYC 1219 of 2015
| Mr Padley |
Appellant
And
| Ms Padley |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed 21 December 2015 Mr Padley (“the father”) appealed against orders made on 26 November 2015 by Judge Henderson. Relevant to the appeal, her Honour suspended orders which enabled the father to spend time with the parties’ daughter (Order 2) and ordered that any time he has with the child is to be at the sole discretion of Ms Padley (“the mother”).
Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice directed that this appeal be determined by a single judge. The appeal was listed for hearing before me and on which occasion, the parties and the Independent Children’s Lawyer (“ICL”) appeared represented by counsel.
The mother and ICL agreed the appeal should be allowed. In this regard, it was conceded that the primary judge erred:
·in finding that there was a risk of harm to the child such that would warrant the suspension of time with the father altogether (ground 3); and
·in failing to make a reasoned and principled assessment on the evidence before her as to whether spending time with the father would expose the child to an unacceptable risk (ground 4).
These concessions were appropriately made and are based on her Honour’s failure to consider all of the other options which might have enabled the child to regularly spend time with the father in a safe setting. In essence, a failure to apply the principles set out in Blinko & Blinko [2015] FamCAFC 146.
It was agreed the proceedings should be remitted for re-hearing and the orders under appeal be set aside.
However, the parties were unable to agree on the orders and arrangements for the child to spend time with the father pending the re-hearing.
The father proposed the reinstatement of earlier interim orders the effect of which would be that he and the child would spend time together on three occasions each week without supervision.
The mother and ICL argued in favour of orders akin to those made by the primary judge. This was on the basis that the father would spend time with the child at least as often as deposed to by the mother in her affidavit of 2 May 2016 and in accordance with a proposal made by the ICL but to which the Court was not privy. And therein lies the problem. It would not be appropriate for this Court to pre-empt the determination to be made at a
re-hearing or to attempt to construct a set of orders without evidence from both parties about what has occurred subsequent to the orders of the primary judge.
Orders along the lines made by the primary judge will preserve the child’s relationship with the father in the 4-6 weeks they are likely to operate without the child being exposed to any risk.
Costs
The sole remaining question is costs.
It is agreed that an order for costs would not be appropriate. The father seeks costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing. The mother and ICL do as well.
The issue of costs certificates in appeals finalised by consent is dealt with in B and B (Costs Certificates) (2007) FLC 93-339. The Full Court adopted the reasons of Kirby J in Cramer v Davies (1997) 72 ALJR 146, that “a hearing” means no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way”. As has already been mentioned, this appeal was listed for hearing. In view of the agreed error of the primary judge and the nature of that error, it is appropriate that there be no order as to costs.
In the circumstances, the parties and the ICL should be granted costs certificates for the appeal and the re-hearing.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 May 2016.
Associate:
Date: 23 May 2016
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