Pruchnik and Pruchnik
[2018] FamCAFC 67
•9 April 2018
FAMILY COURT OF AUSTRALIA
| PRUCHNIK & PRUCHNIK | [2018] FamCAFC 67 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite her appeal against orders substantially changing the children’s living arrangements – Where the orders provide that the children live with the father – Where the mother was the children’s primary carer – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| APPLICANT: | Ms Pruchnik |
| RESPONDENT: | Mr Pruchnik |
| INDEPENDENT CHILDREN’S LAWYER: | Carolina Hernandez |
| FILE NUMBER: | SYC | 381 | of | 2015 |
| APPEAL NUMBER: | EA | 29 | of | 2018 |
| DATE DELIVERED: | 9 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 9 April 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 January 2018 |
| LOWER COURT MNC: | [2018] FamCA 24 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Aaron Legal Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G Fernie |
Orders
That the hearing of appeal EA 29 of 2018 be expedited.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pruchnik & Pruchnik has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SYC 381 of 2015
File Number: EA 29 of 2018
| Ms Pruchnik |
Applicant
And
| Mr Pruchnik |
Respondent
And
Ms Hernandez
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Introduction
These reasons were given orally.
By an Application in an Appeal filed 29 March 2018, Ms Pruchnik (“the mother”) seeks an order for an expedited hearing of her appeal (EA 29 of 2018). The appeal relates to final parenting orders made by Justice Hannam on 23 January 2018.
The parenting proceedings concern the parties’ children, B, born in 2006 and C, born in 2009 (collectively “the children”).
Mr Pruchnik (“the father”) is the children’s father and the respondent to this application and to the appeal.
The effect of the orders under appeal was to substantially change the children’s living arrangements. That is, from being primarily in the care of the mother to that of the father. The orders provide that the father is to have sole parental responsibility for the children, that the children will live with him and spend supervised time with the mother which will gradually increase to unsupervised time overnight.
The father does not oppose an order for expedition.
The Independent Children’s Lawyer’s (“ICL”) position is that the application for expedition should be granted. As I indicated during oral argument, I intend to make an order for expedition.
Relevant background
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from her Honour’s reasons and the document filed in support of this application.
The parties commenced cohabitation in June 2002 and were married in September 2006. There is some dispute about the period in which the parties were separated but it is common ground that they physically separated in 2011. A divorce order was made on 28 April 2013.
There are two children of the relationship to whom reference has already been made. They were 11 and eight years of age respectively at the time of final hearing.
Following separation, the children lived with the mother in north-western Sydney. The children spent time with the father, who lived nearby, each alternate weekend or as agreed by the parties.
The mother formed a relationship with her current partner in about 2012.
The father commenced a relationship with his current wife in about July 2013.
In December 2014 the mother stopped making the children available to spend time with the father. The mother alleged that B made allegations to school staff relating to abuse by the father. B attended a psychologist to whom he made similar reports.
The mother moved to the Central Coast with the children and they began school in the local area at the start of the 2015 school year.
The mother commenced proceedings in the Federal Circuit Court in January 2015.
The father had no time with the children from 7 December 2014 until orders were made on 13 March 2015 for him to have telephone contact with them and for family therapy with a psychologist to commence.
Further orders were made on 9 April 2015 that the father spends time with the children as recommended by the psychologist. The parties reached agreement in accordance with the psychologist’s recommendations but the mother cancelled this arrangement and the matter returned to court at the request of the ICL.
On 15 June 2015 orders were made providing for the children to live with the mother and spend time with the father in the presence of the paternal grandmother.
On 10 December 2015 the parties attended mediation as ordered by the court. The father proposed that the children live with him and spend fortnightly time with the mother.
At about December 2015 the mother ceased making the children available to the father and they did not see him for the ensuing three months. The father was unable to contact the children by telephone during this period.
On 15 December 2015 the mother filed an application seeking that she have sole parental responsibility and that the father and paternal grandparents spend no time with the children. She alleged that the father had been abusive to the children and that the paternal grandfather had behaved improperly towards them.
On 17 February 2016 the mother conceded that she had breached the orders in relation to the father spending time with the children. The court made orders that the time between the father and the children and family therapy recommence.
The matter was transferred to the Family Court on 3 April 2017, roughly two and a half years after the proceedings commenced in the Federal Circuit Court.
The mother ceased making the children available to the father from 4 May which continued until 16 June 2017.
On 14 June 2017 Justice Hannam ordered that the mother present the children to Child Dispute Services on 16 June 2017. The mother complied with the order and the father’s time with the children recommenced.
The trial took place from 20 to 22 November and 20 December 2017 and final orders were made on 23 January 2018 in accordance with her Honour’s reasons for judgment published the same day.
Discussion
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the appeal division, or another judge if there is no judge of the appeal division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or the rules which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for an expedited trial. That rule provides that the Court must consider whether a case should be given priority to the possible detriment of other cases. The potentially relevant factors referred to in the rule which the Court may take into account and which are also relevant to appeals will be discussed.
Subparagraph (a) is concerned with whether the applicant, in this case the mother, has acted reasonably and without delay. The Notice of Appeal was filed on 12 February 2018 and an amended version was later filed on 29 March 2018. Although the expedition application was filed some six weeks after the original notice of appeal, this delay is explained by the change in legal representation in the interregnum. It is a matter of no consequence and reference to the affidavit filed in support of the application shows the diligent approach taken by the mother and those advising her to prepare the matter for a prompt appeal.
Subparagraph (2)(b) is concerned with whether the application has been made without delay. That matter has already been discussed and need not be considered further.
Subparagraph (c) concerns prejudice to the respondent, in this case the father. There can be no concerns as to prejudice provided there is no undue hardship caused to him in preparing his case for appeal within a truncated timeframe. His solicitor informed the court today that the solicitor is in a position to present the father’s case within a truncated timeframe. The lack of prejudice to the father weighs in favour of the order for expedition.
Subparagraph (d) requires consideration of circumstances which justify this case being given priority to the possible detriment of other cases. When I say the detriment of other cases I mean to other cases that have been filed earlier and which would be called on for hearing in the ordinary course but not if this appeal was expedited.
The mother is concerned for the impact to the children’s mental health should the current arrangements continue pending the determination of the appeal. In accordance with the orders of 23 January 2018, the children have been in the care of the father since 12 January 2018 and have spent supervised time with the mother each Sunday for a period of two hours. The mother alleges that due to the father’s failure to facilitate the supervised time between her and the children, the mother did not spend time with the children between 12 January 2018 and 25 February 2018.
Important to the disposition of this application for expedition is the fact that prior to the orders of 23 January 2018, the mother was the children’s primary carer. The mother gives evidence that in her care B was undergoing treatment for suicidal ideation and had been seeing Dr Clayton, who is a psychologist, for a period of two years. Order 20 of the orders of 23 January 2018 provide for the father to ensure that he and the children engage in family therapy with a therapist of the father’s choosing. The mother’s evidence is to the effect that requests by her solicitors to the solicitors for the father for information concerning compliance with Order 20 has gone unanswered.
Other than that, the mother adduces evidence in support of the application which she says indicates that the children are not adjusting to their new living arrangements and that it is important that the court consider the efficacy of the orders which changed the children’s living arrangements as soon as possible. There is considerable force in the submission.
On balance, although bringing this appeal on ahead of other appeals filed earlier will cause some dislocation to those matters, the mother has made out a compelling case for expedition and I will order accordingly.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 9 April 2018.
Associate:
Date: 9 April 2018
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