FAMILY COURT OF AUSTRALIA
| PRUCHNIK & PRUCHNIK | [2018] FamCA 24 |
| FAMILY LAW – CHILDREN – Where the children aged nine and 11 live with the mother – Where the mother had made allegations of abuse in the father’s care which were not pressed at the hearing – Where the father contends that the children are at risk of emotional abuse in the mother’s household – Where there are concerns in relation to the older child’s mental health – Where it is found that the children’s relationship with their father is at risk in the mother’s care – Where orders are made for the children to live with the father and for the children to engage in family therapy – Orders made for the mother to spend time with the children in a graduating arrangement commencing with supervised time – Orders made for the father to have sole parental responsibility for the children. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 65DAA, 65DAC, 65DAC(2) |
| G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Ms Pruchnik |
| RESPONDENT: | Mr Ms Pruchnik |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid |
| FILE NUMBER: | SYC | 381 | of | 2015 |
| DATE DELIVERED: | 23 January 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 20, 21 & 22 November & 20 December 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Graham |
| SOLICITOR FOR THE APPLICANT: | Lindeman Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Haughton |
| SOLICITOR FOR THE RESPONDENT: | Aaron Legal Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ahmad |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
Orders
That all previous Orders be discharged.
That the father have sole parental responsibility for the children B born in 2006 (“B”) and C born in 2009 (“C”) (“the children”).
Notwithstanding Order 2 herein:
(a)The mother shall be responsible for the daily care, welfare and development of the children whilst they are living or spending time with her; and
(b)The father shall be responsible for the daily care, welfare and development of the children whilst they are living or spending time with him.
That the children live with the father.
That the mother spend time with the children during school term time as follows:
(a)For a period of six weeks from the making of these Orders, each Saturday for a period of two hours supervised by the G Service or such other professional supervision service as advised by the ICL or as agreed between the parties. For this purpose the mother and the father shall contact the supervision service and sign all documents necessary and otherwise follow all directions from the supervision service for the mother to spend supervised time with the children. The mother is to bear the costs of supervision;
(b)Following 5(a), for a period of eight weeks, each Saturday from 10 am to 2 pm;
(c)Following 5(b), for a period of eight…
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- Case
- [2018] FamCA 24
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate orders regarding sole parental responsibility, the children's residence, and the specific arrangements for the mother to spend time with the children. This included establishing a phased approach to the mother's time with the children, outlining provisions for school holidays, and addressing communication between the children and the non-resident parent. Further issues included the mother's responsibilities during her time with the children, changeover arrangements, and specific restraints on the mother's conduct concerning the children's schools and contact with a third party. The court also considered orders relating to the children's education, health information, and parental communication, as well as prohibitions on physical discipline and discussion of proceedings in the children's presence.
Hannam J discharged previous orders and made new orders that vested sole parental responsibility for the children in the father. The children were ordered to live with the father, with the mother responsible for their daily care, welfare, and development when they were with her, and the father responsible when they were with him. The court then detailed a phased schedule for the mother to spend time with the children, commencing with supervised time and gradually increasing to unsupervised time, including every second weekend and specific holiday periods. Provisions were made for telephone communication between the children and the non-resident parent, and for the mother to collect the children at certain times. The mother was restrained from attending the children's schools and from allowing the children to enter her care or control outside of the ordered arrangements. Orders were also made regarding the children's enrolment in specific schools, the father's obligation to keep the mother informed of the children's health, and the parties' obligation to exchange contact details. The mother was restrained from bringing the children into contact with a Mr M for six months. Both parties were restrained from physically disciplining the children or discussing the proceedings in their presence. Finally, the court made orders regarding the calculation of school holiday periods and directed the father to engage in family therapy with the children, encouraging the mother to participate.
Orders
Orders of the court
1.
That all previous Orders be discharged.
2.
That the father have sole parental responsibility for the children B born in 2006 (“B”) and C born in 2009 (“C”) (“the children”).
3.
Notwithstanding Order 2 herein:
(a) The mother shall be responsible for the daily care, welfare and development of the children whilst they are living or spending time with her; and
(b) The father shall be responsible for the daily care, welfare and development of the children whilst they are living or spending time with him.
4.
That the children live with the father.
5.
That the mother spend time with the children during school term time as follows:
(a) For a period of six weeks from the making of these Orders, each Saturday for a period of two hours supervised by the G Service or such other professional supervision service as advised by the ICL or as agreed between the parties. For this purpose the mother and the father shall contact the supervision service and sign all documents necessary and otherwise follow all directions from the supervision service for the mother to spend supervised time with the children. The mother is to bear the costs of supervision;
(b) Following 5(a), for a period of eight weeks, each Saturday from 10 am to 2 pm;
(c) Following 5(b), for a period of eight weeks, every second weekend from 10 am Saturday to 12 pm Sunday;
(d) Thereafter, every second weekend from the conclusion of school on Friday, or 3 pm if Friday is a non-school day, until 5 pm Sunday.
6.
That the mother spend time with the children during school holidays as follows:
(a) In the short school holidays at the conclusion of Term 1 of 2018, for one day in the first week of the holidays and one day in the second week of the holidays as agreed between the parties from 10 am to 2 pm;
(b) In the school holidays at the conclusion of Term 2 of 2018 and all school holiday periods thereafter, for one half of the school holidays from the conclusion of the last day of school until 5 pm on the half-way point.
7.
That the mother spend time with the children during all other times, and notwithstanding Orders 5 and 6, as follows:
(a) Commencing in 2018 and during the Christmas period as follows:
(i) From 2 pm Christmas Eve until 2 pm Christmas Day in even numbered years;
(ii) From 2 pm Christmas Day until 2 pm Boxing Day in odd numbered years commencing 2019.
(b) From 5 pm the day before Mother’s Day until 5 pm Mother’s Day, notwithstanding that overnight time may not have commenced in accordance with Order 5(c);
(c) For four hours on the mother’s birthday as agreed between the parties;
8.
The children shall have telephone communication with the parent with whom they are not living or spending time each Tuesday and Thursday between 6 pm and 6.30 pm under the following conditions:
(i) The parents will ensure the children are available to speak;
(ii) The children are given privacy during the call;
(iii) The telephone is not on speaker telephone; and
(iv) The parents do not interrupt the children’s telephone call with the other parent.
9.
That the mother’s time with the children be suspended in the following circumstances:
(a) If Father’s Day falls on a day when the children would otherwise be spending time with the mother, her time be suspended from 5.00 pm on the Saturday prior to Father’s Day until 5 pm on Father’s Day;
(b) If the father’s birthday falls on a day when the children would otherwise be spending time with the mother, her time be suspended for four hours on the father’s birthday as agreed between the parties, or failing agreement from 10 am to 2 pm.
10.
From the commencement of Order 5(d) above, unless otherwise agreed the mother shall be responsible for collecting the children from their respective schools at the beginning of her time with the children.
11.
That for the purpose of changeover at all times when changeover is not occurring at the children’s school, the parents shall meet at McDonalds at Suburb F at the commencement and conclusion of the mother’s time with the children.
12.
That the mother is restrained from attending at either of the children’s schools when the children are due to be in the care of the father pursuant to these Orders, or requesting or permitting any other person to do so on her behalf.
13.
Pursuant to section 68B of the Family Law Act 1975 (Cth) the mother is restrained from encouraging, allowing, causing, permitting or otherwise acquiescing to the children or either of them entering her care and/or control otherwise than in accordance with these Orders or as agreed between the parents. This includes, but is not limited to, allowing, causing, permitting or otherwise acquiescing to the children or either of them entering into any residence where she may live or otherwise be present other than when the children are spending time with her pursuant to these Orders or as agreed between the parents.
14.
That unless otherwise agreed in writing the parties shall do all acts and things and sign all such documents as may be required to cause the child B to be enrolled at Suburb D High School in 2018, and the child C to be enrolled at Suburb D Public School in 2018 until such time as she completes primary school.
15.
That the father keeps the mother informed of all medications prescribed for the children and inform the mother as soon as practicable about any significant injuries or health concerns in relation to the children or either of them.
16.
That the mother and father keep each other advised of their residential addresses and telephone number at all times and notify the other of any change within 48 hours of such change occurring.
17.
That the mother be restrained from bringing the children or either of them into contact with Mr M for a period of six months from the date of these Orders.
18.
That both parties be restrained:
(a) From physically disciplining the children or allowing any other person to do so;
(b) From discussing any aspect of these proceedings within the presence and/or hearing of the children or permitting any other person to do so other than any explanation concerning the orders or the proceedings given by a Family Consultant or another person at the request of the Senior Family Consultant.
19.
That for the purposes of calculating the school holiday period in December/January each year;
(a) The school holiday period is hereby deemed to commence from the end of the school day on the last day of school and to conclude at 5 pm on the Sunday preceding the recommencement of school.
(b) The mid-point of the holidays will be calculated by dividing the total number of nights by two, and in the event there is an odd number, the mother will spend this additional night with the children; and
(c) The changeovers shall occur in the middle Sunday at 5 pm.
20.
The father is to ensure that he and the children engage in family therapy with a therapist of the father’s choosing from the date of these Orders. The father shall encourage his wife, Ms N, to engage in such family therapy.
21.
The mother is at liberty to engage with family therapy with the children as arranged by the father pursuant to order 19 and is encouraged to do so.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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