PADLEY & PADLEY - [2016] FamCAFC 82

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)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8 and 9

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

2015

APPEAL NUMBER:

197

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That the application to adduce further evidence in the appeal filed on 28 April 2016 is withdrawn.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…

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: PADLEY & PADLEY [2016] FamCAFC 82
Case: [2016] FamCAFC 82
Decision Date: 23 May 2016

CaseChat Overview and Summary

Padley & Padley involved an appeal by the father against interim parenting orders that suspended his time with his child. The mother and the Independent Children’s Lawyer agreed that the appeal should be allowed, asserting that the primary judge had erred in finding a risk of harm to the child that would justify the suspension of the father's time. The court was required to determine if the primary judge had correctly assessed the risk of harm and if other options were available to allow the child to regularly spend time with the father in a safe setting.

The Family Court of Australia found that the primary judge had erred in his assessment of the risk of harm, and did not adequately consider other options that could have facilitated safe contact between the father and the child. The court held that the primary judge's decision was not supported by the evidence and that other measures could have been put in place to ensure the child’s safety while still allowing the father to maintain a relationship with the child. Consequently, the court set aside the interim orders and remitted the matter for re-hearing to allow for a fresh assessment.

The court also considered the matter of costs. The appeal was finalised by consent, and the court determined that an order for costs between the parties would not be appropriate. Instead, the court granted cost certificates to the parties and the Independent Children’s Lawyer for the appeal and the re-hearing. This decision ensures that the parties and the Independent Children’s Lawyer are compensated for their legal costs associated with the appeal and the forthcoming re-hearing.

The court’s final orders set aside the interim parenting orders and remitted the matter for re-hearing, with cost certificates granted to the parties and the Independent Children’s Lawyer for both the appeal and the re-hearing.

Orders