PADLEY & PADLEY (No.2) - [2015] FCCA 3576

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADLEY & PADLEY (No.2)

[2015] FCCA 3576

Catchwords:
FAMILY LAW – Children – the presumption of equal shared parental responsibility rebutted and is to be exercised by the mother – father’s time with child suspended – father poses risk of harm to child due to his conduct and behaviour.

Legislation:
Family Law Act 1975 (Cth), s.65DA(2)

Applicant:

MR PADLEY

Respondent:

MS PADLEY

File Number:

SYC 1219 of 2015

Judgment of:

Judge Henderson

Hearing date:

25 November 2015

Date of Last Submission:

25 November 2015

Delivered at:

Sydney

Delivered on:

26 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Pryor Tzannes & Wallis

Counsel for the Respondent:

Ms Coulton

Solicitors for the Respondent:	Eleanor Murphy & Company Solicitors
Counsel for the Independent Children’s Lawyer:	Mr Ng

Solicitors for the Independent Children’s Lawyer:

Adams & Partners Lawyers

ORDERS

The proceedings are transferred to the Family Court of Australia at Sydney and are listed for directions before a Registrar on 25 February 2016 at 9:30am.

THE COURT ORDERS THAT PENDING FURTHER ORDER THAT:

All prior parenting orders for the father to spend time with the child X born (omitted) 2013 are suspended.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Any time the father spends with the child shall be at the sole discretion of the mother.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1219 of 2015

MR PADLEY

Applicant

And

MS PADLEY

Respondent

REASONS FOR JUDGMENT

The matter of Padley & Padley, is an interim application by a mother to suspend orders made by Judge Scarlett on 13 August 2015 relating to the child, X, who was born on (omitted) 2013. The mother seeks to suspend those orders and that the presumption of equal shared parental responsibility, which was also an interim order made, be rebutted. The father resists the application.
Mr Maurice of counsel acts for the mother and Ms Coulton of counsel for the father and Mr Ng, solicitor for X.
The evidence for the parties was as set out in their respective case outlines.
For the mother.
a)Her application in a case filed 27 October 2015.
b)Her supporting affidavits sworn 26 October 2015 and 20 April 2015.
c)Various letters from the father’s solicitors to the mother’s solicitors. Some have been tendered but many are attached to the parties’ affidavits.
For the father.
a)Response to the application in a case, his affidavits of 6 October 2015 and 6 November 2015.
The short facts were…

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 PADLEY & PADLEY (No.2)

Details

AGLC: PADLEY & PADLEY (No.2) [2015] FCCA 3576
Case: [2015] FCCA 3576
Decision Date: 26 November 2015

CaseChat Overview and Summary

In proceedings before Judge Henderson, the dispute concerned parenting orders for a child, X. The orders made by the court indicate a significant shift in the child's living arrangements and parental responsibility, with the mother being granted sole responsibility and the child to live with her.

The court was required to determine the appropriate interim parenting orders, including whether to suspend existing orders for the father to spend time with the child, whether the mother should have sole parental responsibility, and where the child should live. The court also considered the extent to which the father's future time with the child should be regulated.

Applying principles under the *Family Law Act 1975*, specifically section 65DA(2), the court made interim orders suspending prior parenting orders for the father's time with the child. The mother was granted sole parental responsibility, and the child was ordered to live with her. Any future time the father spends with the child is to be at the mother's sole discretion. The court also ordered that the proceedings be transferred to the Family Court of Australia at Sydney for further directions.

Orders

Orders of the court

The proceedings are transferred to the Family Court of Australia at Sydney and are listed for directions before a Registrar on 25 February 2016 at 9:30am.

THE COURT ORDERS THAT PENDING FURTHER ORDER THAT:

All prior parenting orders for the father to spend time with the child X born (omitted) 2013 are suspended.

The mother shall have sole parental responsibility for the child.

The child shall live with the mother.

Any time the father spends with the child shall be at the sole discretion of the mother.

Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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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