Pruchnik and Pruchnik (No. 2) - [2018] FamCAFC 128

FAMILY COURT OF AUSTRALIA

PRUCHNIK & PRUCHNIK (NO. 2)

[2018] FamCAFC 128

FAMILY LAW – APPEAL – PARENTING – Orders changing children’s primary residence from the mother to the father – Where neither party proposed equal shared parental responsibility in relation to all aspects of parental responsibility – Approach to s 61DA(4) discussed – Circumstances which trigger s 65DAA – Adequacy of reasons – Whether adverse findings made without notice – Procedural fairness – Findings of fact – Adequacy of weight given to children’s views – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Evidence of events that have occurred since the making of final orders – Evidence adduced to demonstrate that had the further evidence been known to the primary judge there would have been a different result – Where the evidence would not have affected the outcome – Application in an appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Costs sought by the respondent and Independent Children’s Lawyer – Where the appellant’s lack of success justifies an order for costs – Applications for costs granted – Fixed sum.

Family Law Act1975 (Cth) ss 60CC, 61B, 61C, 61DA, 64B(2)(h), 65DAA, 65DAC

Beckham v Desprez (2015) 55 Fam LR 310; [2015] FamCAFC 247
Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458
Bondelmonte & Bondelmonte (2016) FLC 93-698; [2016] FamCAFC 48
Browne v Dunn (1893) 6 R 67
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chappell & Chappell (2008) FLC 93-382; [2008] FamCAFC 143
De Winter v De Winter (1979) 23 ALR 211
Doherty & Doherty (2014) FLC 93-571; [2014] FamCAFC 20
Doherty & Doherty [2016] FamCAFC 182
Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jollie & Dysart [2014] FamCAFC 149
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Mellick & Mellick [2014] FamCAFC 236

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Newlands v Newlands (2007) 37 Fam LR 103; [2007] FamCA 168
SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132
SCVG v KLD (2014) FLC 93-582; [2014] FamCAFC 42

APPELLANT:

Ms Pruchnik

RESPONDENT:

Mr Pruchnik

INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

FILE NUMBER:

SYC

381

2015

APPEAL NUMBER:

2018

DATE DELIVERED:

11 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge &
Austin JJ

HEARING DATE:

30 May 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 January 2018

LOWER COURT MNC:

[2018] FamCA 24

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney SC

SOLICITOR FOR THE APPELLANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

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

Case: [2018] FamCAFC 128
Decision Date: 11 July 2018

CaseChat Overview and Summary

In the matter of Pruchnik and Pruchnik (No. 2), the parties were involved in a dispute regarding the primary residence of their children, with the initial orders favoring the mother. The appeal was heard in the Family Court of Australia. The legal issues included the proper interpretation and application of section 61DA(4) of the Family Law Act, the adequacy of the reasons provided for the change in residence, the procedural fairness of the primary judge’s approach, and whether the children's views were adequately considered.

The court considered whether the primary judge had properly exercised the discretion afforded under section 61DA(4) of the Family Law Act. It was noted that neither party had proposed equal shared parental responsibility in relation to all aspects of parental responsibility, which influenced the court's decision. The court emphasised the importance of procedural fairness, particularly in relation to the rule in Browne v Dunn, which requires that adverse findings be put to the witness during cross-examination if they are to form the basis of adverse submissions. The court concluded that there was no procedural unfairness despite the lack of direct cross-examination on certain issues, as the implications were otherwise plainly in issue.

The appeal was ultimately dismissed, and the primary judge's orders were affirmed. The court also dismissed the applications to adduce further evidence, finding that such evidence would not have altered the outcome. In terms of costs, the appellant was ordered to pay the respondent’s costs in the amount of $5,000 and the Independent Children’s Lawyer’s costs in the amount of $2,178, both within 28 days.

Orders

Orders of the court

The appellant’s application in an appeal to adduce further evidence filed 11 May 2018 (as amended) be dismissed.

The respondent’s application to adduce further evidence be dismissed.

The appeal be dismissed.

The appellant pay the respondent’s costs fixed in the amount of $5,000 within 28 days.

The appellant pay the Independent Children’s Lawyer’s costs fixed in the amount of $2,178 within 28 days.

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

Properly understood, the proposition raised by Ground 6 is that even where affidavits or case outlines, other evidence or documents, for example expert reports, have made it clear that particular assertions or evidence will be challenged, or adverse inferences drawn, procedural fairness requires that such matters be put to a witness if they are to form the basis for adverse submissions or findings. The proposition is based on the rule in Browne v Dunn (1893) 6 R 67. In SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633 McColl JA discussed the operation of the rule, including where evidence in chief is given in writing:[136] The rule in Browne is an obligation of procedural fairness which counsel has when cross-examining a witness who counsel intends to submit should not be accepted. It is an obligation “to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of [the witness’s] evidence”. It applies both to party witnesses and witnesses generally. [137] The rule in Browne is both “a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties … [and also] a rule relating to weight or cogency of evidence”. It “facilitates the tribunal’s assessment of the reliability and accuracy of the witness.” Even where, for example, the inference on which a party may intend to rely to impeach a witness is clear from the exchange of witness statements or affidavits or reports, “such notice … does not absolve the party who seeks to impugn the witness’s credibility, from cross-examining as to those issues that the party intends to ultimately submit are of significance [so as to] provid[e] the basis upon which the tribunal of fact can make the necessary assessment of the witness in relation to those issues”. If “matters in controversy are not ‘put’ to the witness in cross-examination the tribunal’s capacity to assess the merit of the allegation subsequently to be made and the credit of the witness is likely to be impeded”. [138] Thus, the parties “cannot by an agreement to which the court has acquiesced, authorise a course which denies elementary procedural fairness to a witness”. [139] It might be accepted, as Mr George submitted, that the rule in Browne is of less importance where pleadings, affidavits or pre-trial preparation, have already made clear that the particular assertion or evidence will be disputed. However, “[e]ven when there has been an exchange of affidavits or statements, the rule in Browne will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case.”(Our emphasis) (Footnotes omitted) We agree and thus are satisfied that even if the impugned findings were not the subject of cross-examination, provided the implications were otherwise plainly in issue there will be no want of procedural fairness.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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