FAMILY COURT OF AUSTRALIA
| PAINTAL & PAINTAL | [2020] FamCAFC 123 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from an order made by the primary judge dismissing an interim parenting application – Where the grounds of appeal contend issues of procedural fairness, errors of fact and a failure by the primary judge to take into account material considerations – Where some of the grounds of appeal are considered as a collective attack on the Independent Children’s Lawyer – Where the mother and the Independent Children’s Lawyer oppose the appeal – Where no procedural fairness – Where the primary judge carefully abstained from making any factual findings on controversial evidence – Where no errors of fact – Where the material considerations allegedly not taken into account by the primary judge were not posited by the father to the primary judge as influential considerations – Where the Independent Children’s Lawyer was obliged to form her own view which incidentally coincided with the mother’s view – Where the primary judge’s reasons are adequate – Where there is no merit in the appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Where the mother and the Independent Children’s Lawyer sought costs orders against the father – Where party/party costs are sought – Where the father’s financial circumstances are considered – Where the father has not demonstrated that he will suffer hardship if ordered to pay costs – Where the father is ordered to pay fixed costs to the mother and the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) Pt VII, ss 68LA, 94(2A), 117 Family Law Rules 2004 (Cth) r 19.18(1)(a) |
| Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33 House v The King (1936) 55 CLR 499; [1936] HCA 40 Mallory & Mallory [2020] FamCAFC 62 Paintal & Paintal [2020] FamCAFC 17 Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207 |
| APPELLANT: | Mr Paintal |
| RESPONDENT: | Ms Paintal |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | CAC | 273 | of | 2014 |
| APPEAL NUMBER: | EAA | 84 | of | 2019 |
| DATE DELIVERED: | 22 May 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Kent, Austin & Tree JJ |
| HEARING DATE: | 22 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 624 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Women's Legal Centre (ACT & Region) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
Orders made 22 May 2020
(1)The appeal be dismissed.
(2)The appellant father pay the respondent mother’s costs fixed in the amount of $7,000 within two months from the date of these Orders.
(3)The appellant father pay the Independent Children’s Lawyer’s costs fixed in the amount of $6,994.37 within two months of the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS…
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- AGLC
- PAINTAL & PAINTAL [2020] FamCAFC 123
- Case
- [2020] FamCAFC 123
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the court were whether the primary judge had acted with procedural fairness, whether there were any errors of fact in the primary judge’s findings, and whether the primary judge had failed to consider certain material factors. The father alleged procedural unfairness, particularly in the handling of controversial evidence, and contended that the primary judge had overlooked significant considerations that would have favoured his application. Additionally, the father made a collective attack on the Independent Children’s Lawyer’s role and conclusions. The court found no procedural unfairness as the primary judge had meticulously avoided making factual findings on contentious evidence. Furthermore, the court determined that there were no errors of fact and that the father had not presented the alleged material considerations to the primary judge as influential factors. The court also noted that the Independent Children’s Lawyer was obligated to form her own view, which happened to align with the mother’s position.
Upon reviewing the primary judge’s reasons, the court found them to be adequate and comprehensive, addressing all pertinent issues and evidence. Consequently, the appeal was dismissed, and the original order of the Family Court remained in place. Given the wholly unsuccessful nature of the appeal, the court also ordered the father to pay fixed costs to both the mother and the Independent Children’s Lawyer, taking into account his financial circumstances and the absence of evidence that he would suffer hardship if required to pay these costs. The father’s appeal was thus both legally and financially unsuccessful.
Orders
Orders of the court
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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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