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PAINTAL & PAINTAL

Case [2020] FamCAFC 123 22 May 2020

Appeal

Costs

Family Law

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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

2014

APPEAL NUMBER:

EAA

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…

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: PAINTAL & PAINTAL [2020] FamCAFC 123
Case: [2020] FamCAFC 123
Decision Date: 22 May 2020

CaseChat Overview and Summary

The matter under consideration is an appeal by the father against an order of the Family Court of Australia dismissing his interim parenting application. The dispute primarily concerns the allocation of parenting responsibilities over a child, with the father arguing that the primary judge did not fairly consider all relevant factors, particularly those relating to his circumstances. Both the mother and the Independent Children’s Lawyer have opposed the appeal, asserting that the father’s arguments are without merit and that the primary judge’s decision was well-reasoned and supported by the evidence presented.

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