Padnall and Padnall (No. 2) - [2014] FamCA 889

FAMILY COURT OF AUSTRALIA

PADNALL & PADNALL (NO. 2)

[2014] FamCA 889

FAMILY LAW – CHILDREN – Final Orders – Consent Orders – where proposed consent orders are silent as to parental responsibility – whether presumption of equal shared parental responsibility must apply – best interests of the children – where Court declines to make orders in terms of the proposed Minutes of Order

Family Law Act 1975 (Cth) ss 61C, 61D, 61DA, 64B

B & B; Family Law Reform 1995 (1997) FLC 92-755
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (2010) 43 Fam LR 348
Newlands & Newlands (2007) 37 Fam LR 103
Pavli & Beffa [2013] FamCA 144

APPLICANT:

Mr Padnall

RESPONDENT:

Ms Padnall

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

FILE NUMBER:

ADC

1244

2012

DATE DELIVERED:

21 October 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

David Burrell and Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Winter, Legal Services Commission

Orders

The oral application for consent orders made on 17 October 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Padnall & Padnall (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1244 of 2012

Mr Padnall

Applicant

And

Ms Padnall

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed 25 July 2014, Mr Padnall (“the father”) seeks parenting orders in relation to A born in 2001, B born in 2004 and C born in 2010 (“the children”). They currently reside with the mother.
Ms Padnall (“the mother”) seeks orders as set out in her Response to the Initiating Application filed 11 May 2012.
The proceedings involve parenting issues and property settlement and division. The proceedings are listed for trial as a primary hearing commencing 1 December 2014.
Pursuant to orders made 12 September 2014, paragraph 1 of the father’s Application in a Case filed 7 February 2014 seeking leave to adduce separate adversarial evidence was listed for hearing on 17 October 2014.
On that date the parties and the Independent Children’s Lawyer (“ICL”) were represented by counsel. I was advised that agreement had been reached in relation to the outstanding parenting issues and a Minute of Order was tendered and on the joint application of the parties and the ICL, I was asked to make orders by consent in terms of the Minute of Order as provided.
I was not prepared to do so at the time, preferring to give the matter some further thought and deliver reasons for judgment.

ORDERS SOUGHT

In the Amended Initiating Application the father sought an order that there be equal shared parental responsibility in respect…

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 Padnall and Padnall (No. 2)

Details

AGLC: Padnall and Padnall (No. 2) [2014] FamCA 889
Case: [2014] FamCA 889
Decision Date: 21 October 2014

CaseChat Overview and Summary

In *Padnall and Padnall (No. 2)*, Berman J of the Family Court of Australia considered an oral application for consent orders made on 17 October 2014. The specific nature of the dispute between the parties, Mr and Mrs Padnall, is not detailed in the provided text, beyond the fact that it concerned an application for consent orders.

The central legal issue before the court was whether to approve and make orders based on the consent reached by the parties. This required the court to assess the application against the relevant legal standards and principles governing the making of consent orders in family law matters.

Berman J dismissed the oral application for consent orders. While the reasons for dismissal are not elaborated upon in the provided text, the decision indicates that the court found grounds not to endorse the proposed consent orders. The court's ultimate order was that the application be dismissed.

Orders

Orders of the court

The oral application for consent orders made on 17 October 2014 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.