Pruchnik and Pruchnik (No. 2)
[2018] FamCA 226
•12 April 2018
FAMILY COURT OF AUSTRALIA
| PRUCHNIK & PRUCHNIK (NO. 2) | [2018] FamCA 226 |
| FAMILY LAW – STAY APPLICATION – Where the mother seeks a stay of final parenting orders that the children live with the father and spend gradually increasing time with the mother – Where the mother has appealed those orders – Where the mother has sought expedition in the Appeal –Where the children’s present circumstances are satisfactory – Where the continuation of the present parenting orders would not render the Appeal nugatory – Where it is in the best interests of the children to limit changes in their circumstances – Application for stay dismissed. |
| Family Law Act 1975 (Cth) ss 61DA, 65DAA |
| Aldridge &Keaton [2009] FamCAFC 106 Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 Cape & Cape [2013] FamCAFC 114 Clemett & Clemett (1981) FLC 91-013 CSN & JBN (1998) FamCA 176 Gronow & Gronow (1979) 144 CLR 513 Heaton & Heaton (Stay Application) [2014] FamCA 840 House v The King (1936) 55 CLR 499 Pruchnik & Pruchnik [2018] FamCA 24 Sheldon & Weir [2011] FamCA 2 Tranh & Long (No. 2) [2008] FamCAFC 194 |
| APPLICANT: | Ms Pruchnik |
| RESPONDENT: | Mr Pruchnik |
| INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
| FILE NUMBER: | SYC | 381 | of | 2015 |
| DATE DELIVERED: | 12 April 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 4 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Reilly |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Ms Haughton |
| SOLICITOR FOR THE RESPONDENT: | Aaron Legal Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Daniel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
Orders
The mother’s Application in a Case filed 16 February 2018 is dismissed.
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 (No. 2) 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).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 381 of 2015
| Ms Pruchnik |
Applicant
And
| Mr Pruchnik |
Respondent
REASONS FOR JUDGMENT
Introduction
In November and December 2017 I heard competing parenting applications in relation to the parties’ two children, B (“the son”) who is 12 and C (“the daughter”) who is nine. Judgment was delivered on 23 January 2018[1] (“the January 2018 Judgment”).
[1]Pruchnik & Pruchnik [2018] FamCA 24
Pursuant to the orders made on 23 January 2018 (“the January 2018 orders”) the children live with the father who has sole parental responsibility for them and the mother spends defined time with the children which is initially supervised.
Prior to the January 2018 orders the children had been living with their mother following separation in 2011 either by agreement or court order.
For reasons fully explained in the January 2018 Judgment a central issue which was not in dispute but was of great significance is that the parties’ son began making complaints to his mother about alleged abuse perpetrated by the father a few years after separation and later, though to a lesser extent, the daughter has also made complaints about the father’s conduct towards her.
On 12 February 2018 the mother filed a Notice of Appeal seeking that the January 2018 Orders be set aside.
On 16 February 2018 the mother filed an Application in the Case seeking a stay on the January 2018 Orders. The stay is opposed by the father and the Independent Children’s Lawyer (“ICL”). This judgment is concerned with whether a stay of the orders should be made.
background
The parents separated after a nine year relationship in 2011 when the children were aged five and two.
At all times since separation the children have lived with the mother. Originally this was as agreed between the parties.
In December 2014 the mother alleged that the son made complaints of physical abuse by the father and she then commenced these parenting proceedings.
Interim court orders provided that the children spend time with their father but this did not always occur. At times there have been periods of weeks or months where the mother did not make the children available to the father to spend time with him although on each occasion after court intervention that time was restored.
Although the mother had made serious allegations against the father in the past she did not contend at the final hearing that the father currently or in the future poses any unacceptable risk of harm to the children. She sought orders that the then current arrangement of the children spending alternate weekends with the father continue, with the addition of the father spending time with the children during school holidays and on special occasions.
At the final hearing the father contended that unless the children’s living arrangements changed and they came to live primarily with him the children would not share a meaningful relationship with him in the future and would be at risk of emotional abuse in the mother’s care. Accordingly he sought orders for a change in the children’s residence.
The ICL took a neutral position at the final hearing and did not promote the orders of either party over those of the other.
For the reasons set out in the January 2018 Judgment I was satisfied that it was in the best interests of the children for there to be a change in their parenting arrangements and that they move immediately to live primarily with their father and spend defined time with their mother.
In order to understand the context of this stay application I extract the following paragraphs under the heading of “Conclusion” from the January 2018 Judgment:
411. In coming to the view that this arrangement is in the best interests of the children I attach particular weight to the risks to the children having a meaningful relationship with their father if they remain living with the mother in light of my findings about the family dynamics in the mother’s household. I also attach significant weight to the capacity of each of the parents and others in the respective maternal and paternal households. I do not attach any weight to the views expressed by the children for the reasons given.
412. The most significant factor in favour of the children remaining in the primary care of their mother is that it is likely that the children will experience a change in their living arrangements as traumatic. However, a number of orders proposed by the father, as recommended by the expert, will provide support for the children during this difficult time. It is the intention of the children’s stepmother to work from home for some time following the change in the children’s care arrangements. They will also receive family therapy and orders will be made in accordance with the expert’s recommendation to assist the mother to contain her emotions during her time with the children. The adverse influence of the mother’s partner will in my view be mitigated by an order that he not be brought into contact with the children for a period of six months. I have also found that the father and his wife have good capacity to provide for the children’s needs, which will support them through this difficult time.
The change in the children’s residence occurred when the final orders were made on 23 January 2018. At that stage the children were spending time with their father during the school holidays and as I understand it they continued to reside with him from that date. The children were enrolled in new schools as had been sought by the father.
On the final day of the hearing the parties had consented to orders that the children attend at child dispute services on the day that judgment was to be delivered and orders were made for a Family Consultant at Child Dispute Services, with the assistance of the ICL, to explain the decision and the consequent new parenting arrangements to the children.
On 12 February 2018 the mother lodged an appeal against the January 2018 Orders. At that stage she did not seek expedition of the Appeal but has subsequently sought that the hearing of the Appeal be expedited.
The Application for Stay was filed on 16 February 2018.
On 25 February 2018 the mother began spending supervised time with the children pursuant to the final orders. The mother’s time with the children will shortly become unsupervised and then incrementally progress in accordance with the orders to an arrangement after 16 weeks whereby the mother will spend each alternate weekend with the children and time during the school holidays.
The effect of the stay, if granted is that the parenting arrangement in place prior to the January 2018 orders will be reinstated and the children will return to live with their mother.
The Law & Discussion
The law as to the general principles applicable to a stay pending appeal is well settled.
In Cape & Cape[2], the Full Court considered orders permitting the mother to relocate to Germany, and the refusal to stay the relocation orders pending the appeal. The Full Court referred to the approach taken by Crisford J, the First Instance Judge, as accurately relying upon the statement of principles by the Full Court in Tranh & Long (No. 2)[3]. These principles are the same as those referred to by the Full Court in Aldridge &Keaton[4].
[2] [2013] FamCAFC 114
[3] [2008] FamCAFC 194
[4] [2009] FamCAFC 106
The principles from Trahn & Long (No. 2) (supra) or Aldridge & Keaton (supra), which govern the determination of a stay application concerning a child are[5]:-
[5] Ibid at [21]
·the mere filing of an appeal is insufficient to ground a stay;
·the onus to establish a proper basis for the stay is on the applicant for the stay – however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·the person who has obtained a judgment is entitled to presume the judgment is correct;
·the bona fides of the applicant;
·a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
·the desirability of limiting the frequency of any change in a child’s living arrangements;
·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
·the best interests of the child the subject of the proceedings.
There is no evidence to suggest that the mother is not acting bona fides in appealing against the parenting orders as a challenge to them is consistent with her position in the proceedings that it is in the children’s best interests for them to live primarily with her.
In proceedings concerning children less weight is attached to the parties’ competing rights though as a matter of principle the father is entitled to the benefit of the judgment and to presume that it is correct.
It is not suggested that the Appeal may be rendered nugatory if a stay is not granted and the children remain living in the primary care of their father as it would always be open to a court rehearing the matter in the event of a successful appeal to find that it is in the best interests of the children to return to live primarily with the mother. Having regard to their ages when such a rehearing may be determined there would still be many years of the children’s childhood remaining during which the orders could operate.
One of the more difficult matters to assess when considering a stay application is the strengths of the appeal.
The grounds of appeal are contained in the mother’s Amended Notice of Appeal filed 29 March 2018 and are, in summary, as follows:
· That I failed to make a finding pursuant to section 61DA(4) of the Family Law Act 1975 (Cth) (“the Act”) rebutting the presumption in favour of equal shared parental responsibility and therefore erred in failing to consider section 65DAA of the Act;
· That in making an order for the father to have sole parental responsibility I did not give adequate reasons and did not afford the mother procedural fairness as she had not conducted her case on the basis that she would be excluded from shared parental responsibility or that section 65DAA would not be considered;
· That I gave inadequate reasons for the amount and regularity of the mother’s time with the children under the final orders;
· That I failed to properly identify and consider the competing parenting proposals of the parties;
· That the mother was denied procedural fairness in terms of the father’s case as to risk of harm as outlined in the January 2018 Judgment not being made clear to the mother;
· That my discretion miscarried in changing the [son]’s residence without expert evidence as to the consequences of a change of residence and in reaching the conclusion that no weight should be given to [son]’s views given expert evidence to the contrary;
· That I failed to give adequate reasons for not making an order that the [son] continue to engage with his treating psychologist;
· That I failed to give adequate reasons for and my discretion miscarried in making an order restraining the mother from bringing the children into contact with [the mother’s partner];
· That I failed to give adequate reasons for taking into account or alternatively took into account irrelevant matters regarding facts about the mother’s background;
· That my discretion miscarried as a consequence of errors of fact in regards to specific issues;
· That I failed to take into account that the mother’s failure to call evidence from a certain person was a result of a direction that the evidence not be filed; and
· That I failed to take into account relevant facts, including concessions made under cross examination, regarding the realistic nature of the mother’s concerns about the father;
In Heaton & Heaton (Stay Application)[6] I made the following comments about the manner in which the strengths of an appeal should be assessed when determining a stay application:
[Counsel submitted] that the appropriate approach to be taken when making an assessment of the strengths of the appeal is that taken in Sheldon & Weir[7] by Justice Ryan. Her Honour adopted the approach to a family law context, which had been taken by Kirby J in Bryant v Commonwealth Bank of Australia[8]. In Bryant his Honour said that “a decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and, if granted, the appeal”. Instead Kirby J said that the “prospects of success will necessarily involve a matter of judicial impression”.
[6] [2014] FamCA 840 at [31]
[7] [2011] FamCA 2
[8] (1996) 134 ALR 460
Many of the mother’s grounds of appeal depend on a consideration of the weight that was given to particular matters. As is clear from House v The King[9] and Gronow & Gronow[10] appellate Courts are slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of the matters of weight.
[9] (1936) 55 CLR 499
[10] (1979) 144 CLR 513
I will also address the merits of some of the mother’s specific grounds of appeal in brief below.
In regards to the grounds of appeal concerning parental responsibility, I did consider section 61DA(4) of the Act and made a finding that the presumption in favour of equal shared parental responsibility was rebutted in the circumstances of the case. Detailed reasons for this finding are given at paragraphs [396] to [408] of the January 2018 Judgment. Given I made an order for the father to have sole parental responsibility for the children and section 65DAA of the Act is only invoked if an order for equal shared parental responsibility is made, there was no need for me to consider section 65DAA as I noted at paragraph [409] of the January 2018 Judgment.
It is important to note that the ICL at final hearing sought that in the event orders were made for the children to reside primarily with the father, he have sole parental responsibility for them. Given the prospect of the children living with the father was raised continuously throughout the proceedings as was the father’s proposal that he have sole parental responsibility for at least two significant matters in relation to the children, (health and education) I am of the view that the mother was afforded procedural fairness in regards to this issue.
In regards to the grounds of appeal concerning the son, the expert was cross examined at length about the effects on the child of a change of residence.[11] The expert’s opinion as to changing the children’s residence and the weight to be given to that opinion is summarised in the January 2018 Judgment at paragraphs [295] – [296]. At paragraph [415] of the judgment I specifically give reasons as to why an order for the child to continue to engage with his previous treating psychologist was not warranted. The views of the children, and the influences on those views, were examined at length in the January 2018 Judgment and I specifically explored at paragraphs [347] – [349] and [353] the reasons why the son’s expressed views were not given weight in light of the expert’s evidence.
[11] Extracted at Paragraphs [288] and [289] of [2018] FamCA 24
The reasons for the restraint on the mother’s partner coming into contact with the children are outlined at paragraphs [326] – [334] of the January 2018 Judgment.
At paragraphs [308] and [309] of the January 2018 Judgment I outlined in general terms the proposals of the parties as to time with each parent in the context of the children having a meaningful relationship with each parent. Throughout the judgment the proposals of the parties, including the allegations of risk and limitations to parenting capacity underpinning those proposals, as canvassed in cross examination and submissions are considered and each of those mater are dealt with at length and in detail. Orders made were in accordance with those proposed by both the father and the ICL in regards to which all parties had the opportunity to make submissions. In my view the claim that the mother was denied procedural fairness lacks substance.
Considering the grounds in the context of “my knowledge of the evidence and the analysis of those issues in my reasons”[12], I am of the view that many of the mother’s grounds of appeal lack merit. That is not to say however that there is no prospect of a successful appeal.
[12] Sheldon & Weir [2011] FamCA 2
The desirability of limiting the frequency of any change in a child’s living arrangements is in my view a weighty factor is this stay application.
A number of cases, starting with Clemett & Clemett[13], refer to the desirability for the frequency of any changes in custodial arrangements relating to the child being limited as much as possible. In that case, Nygh J said at 76,175:
If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period of time.
[13] (1981) FLC 91-013
Subsequent cases, including the Full Court decision of CSN & JBN[14], make it clear that in order for the Court to attach weight to the status quo, the aspect of the present circumstances of the child being satisfactory is critical.
[14] (1998) FamCA 176
The final matter to consider is the best interests of the children. The s60CC matters were considered at length and in detail in the January 2018 Judgment and there is nothing to suggest that they do not equally apply less than three months later. Having regard to all of those matters I was of the view that it was in the children’s best interest to make the orders that I did.
The tenor of the mother’s case is that the current circumstances of the children are unsatisfactory as evidenced by their complaints to her about the father’s conduct and their living arrangements when spending time with her. Her contention at trial which continues is that it would be satisfactory for the children to be returned to her care.
If the children were to be returned to live with the mother they would experience another significant change in their lives including a change of schools. In the event that the appeal was dismissed there would be yet another significant change for the children.
Both children have started at their new schools and are attending without incident. Further change to the children’s schooling and circumstances, particularly B given his vulnerabilities and his commencement of high school in 2018, would not be in the children’s best interests.
The mother is not contending that the children will be at an unacceptable risk of harm in the care of the father if the stay is not granted. Her concerns as to the children’s welfare appear to arise solely from complaints made to her and others by the children about the parenting of the father. These complaints are markedly similar to those discussed in the January 2018 Judgment and do not, on the evidence before me, suggest that the children are at risk of harm in the father’s care.
The concerns raised by the mother in relation to the propensity of the children to complain to her about their father were considered at length in the January 2018 Judgment. For the same reasons outlined in the January 2018 Judgment, particularly at paragraph [311], I do not attach significant weight to the views of the children as currently expressed to the mother or the contact centre staff following the children having spent time with or during the children’s time with the mother.
It was anticipated in the January 2018 Judgment, particularly when dealing with the evidence of the expert, that the children’s transition from the care of the mother to the care of the father would be very difficult for them. The submission that the January 2018 Orders should be stayed for this reason is given little weight as it was expected that there would be a difficult period of adjustment following the making of those Orders.
The children are entitled to the benefit of a meaningful relationship with both parents. In the January 2018 Judgment I made the following comments about the capacity of the mother to promote the children’s relationship with the father at [310] – [318]:
Since these proceedings were commenced in 2015, orders have been consistently made for the father to spend time with the children. On at least three occasions, the mother has unilaterally withheld the children from the father despite court orders. I have made findings earlier in these Reasons that she did so without reason. The mother has also unilaterally made a number of significant major decisions with respect to the children, a matter to which I will return.
The expert’s evidence which I accept is that there are significant negative influences in the mother’s household about the father and the value of his role in the children’s lives. The expert also opines that the mother continues to present as unable to protect the children from her own fears that the father is uninterested, largely absent and punitive which may be reinforced by the complaints of the children who appear compelled to repeat a negative narrative about the father and his wife.
The expert was firm in her position that the children are at risk of rejecting their father if the family dynamics in the mother’s household do not change. As set out earlier, the expert expressed her concern that in the 14 months between her report and the hearing, nothing had changed in the relationships and parenting capacity of the mother.
When cross-examined by counsel for the father, the expert accepted that in the mother’s household, the children are not supported in their relationship with their father. She was asked whether the older child, while he remained living in the mother’s household, would not be allowed to have a relationship with his father. She responded:
I don’t know if I like the word “allowed”, but I certainly think I’ve already stated that there won’t be the clear containment of [the older child] that [the older child’s] verbalisations will be taken at face value. In that way, there’s no assistance to facilitate him spending his time with his father.
In my view, the events of 22 September 2017 demonstrate that this is still a live issue. On that occasion, although the mother appeared to say the right things to the older child to encourage him to go with the father, she was ultimately unable to assist to facilitate that occurring.
The expert even went so far as to express concern about the mother’s capacity to support the children in their relationship with their father if orders were made that they live with him. She said:
… and the other issue is [the older child] still has to see his mother, and I don’t know how his mother will be able to support him living with his father, and so their communication, I think, will continue as it has been for many years, ie, “your father is someone who does intimidate, etcetera, etcetera, you.” So the change has to be a dynamic change in relationship, where [the older child] has to be assisted to self-regulate, to be able to do some critical thinking, and to be able to critically think, you need to have your emotions under reasonable control, otherwise they just flood the whole situation, and he – and his mother needs to go through the same process …
… So there needs to be that reality check happening from mum, from the clinicians involved, and then – so that [the older child] learns to internalise that and (sic) able to pull himself up.
For this reason, the expert recommended that if the children are moved to live primarily with their father there could be a short break in their time with the mother which then should initially take place in a supervised setting and be gradually increased over time.
Although the expert expressed concern about the mother’s incapacity to support the children’s relationship with their father, whether they continue to live with her in the future or move to live with him, clearly the risk is greater if they live primarily with the mother. This is a matter to which I attach significant weight when considering the competing proposals.
There is no suggestion that the children’s relationship with their mother is at any risk in the father’s household.
The concerns raised at final hearing regarding the mother’s capacity to support the children’s relationship with their father, to which I attached significant weight in the January 2018 Judgment, have not been addressed. It is of great concern that, as the Expert predicted at the final hearing, the conversations between the mother and children about the father have remained focused on perceived deficiencies in his parenting capacity and the children still apparently feel the need to make complaints about the father to the mother.
The mother’s time with the children is progressing according to the January 2018 Orders and there is no suggestion, other than the complaints of the children to which I attach little weight for reasons explained earlier, that the father is not facilitating the children’s time with the mother or failing to support their relationship with her.
Having regard to the considerations referred to above and closely examined in the January 2018 Judgment, I am of the view that the best interests of these children will be met by the January 2018 Orders remaining in force until the appeal is determined.
Conclusion
Although it is not necessary for the mother to demonstrate any special or exceptional circumstances, she still bears the onus to establish that there is a proper basis for the stay in this matter. The father is entitled to the benefit of the January 2018 Judgment and is entitled to presume that judgment is correct.
The mother has applied for expedition in her Appeal. If expedition is granted the Appeal may be heard within six to 12 months. Even if expedition is not granted it is likely that the Appeal would be heard within 18 months.
The children’s present circumstances do not pose a risk of harm to them and it is in their best interests that changes in their parenting arrangements be limited.
In circumstances where the children are able to receive the benefit of a meaningful relationship with both parents under the January 2018 Orders and the appeal will not be rendered nugatory if a stay is not granted, I decline to stay the January 2018 Orders.
Accordingly, I dismiss the mother’s Application in a Case filed 16 February 2018.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 April 2018.
Legal Associate:
Date: 11 April 2018
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