Graham and Kovacs (No 2)
[2015] FamCA 450
•16 June 2015
FAMILY COURT OF AUSTRALIA
| GRAHAM & KOVACS (NO 2) | [2015] FamCA 450 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where father seeks adjournment of further hearing of trial due to legal and private reasons – Where Mother and ICL oppose the father’s Application - Where parties have been engaged in highly hostile litigation for about five years – Where neither the Mother and ICL asserted that they would suffer any prejudice in the event that the trial were not to proceed that day, but were to proceed a week later – Where upon balance the Court is persuaded that the interests of justice lie in granting a short adjournment to enable to the father to prepare for the resumption of trial. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Graham |
| RESPONDENT: | Mr Kovacs |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| DATE DELIVERED: | 16 June 2015 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 27 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wilson |
| SOLICITOR FOR THE APPLICANT: | Sandra Sinclair |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Victoire |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
The hearing of the trial of this matter resume at 10:00am on Tuesday 28 April 2015.
Otherwise the father’s Application in a Case filed 24 April 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Kovacs (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC762/2010
| Ms Graham |
Applicant
And
| Mr Kovacs |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 27 April 2015, I adjourned the resumption of the trial in this matter to 28 April 2015, but otherwise dismissed the father’s Application to Adjourn the trial. These are my reasons for that decision.
By Application in a Case filed 24 April 2015, the father sought that the further hearing of the trial in this matter, which was due to resume on 27 April 2015 before me “be adjourned due to legal and private reasons.” In his affidavit filed simultaneously with that Application, the father deposed to the fact that his mother had suffered a stroke on Tuesday 21 April 2015, and was then currently in the F Town Base Hospital, where she was expected to then remain for “some days”. He said that his mother, who ordinarily lives in Country S and is a Country S national “speaks limited English and (sic) I am her only relative in Australia I have had to remain by her side.” He went on to say that in consequence, he had been unable to properly prepare his case, or to respond to an affidavit that had been filed by the mother on 22 April 2015. Finally it was said that a witness whom he intends to call – a Ms T – was unable to appear to give evidence, and also his mother would be unable to attend to give evidence.
In his submissions before me, the father raised a number of other matters not contained in the affidavit. They included that being without legal representation, he was unable to achieve a fair trial, and allegations that I had in any event pre-determined the outcome of the trial.
The father’s Application was opposed both by the mother and the Independent Children's Lawyer.
RELEVANT HISTORY OF THE PROCEEDINGS
These proceedings have a long and highly conflictual history. They were commenced by the mother as long ago as 17 December 2010. The trial commenced before me on 30 September 2013, and ran until consent interim orders were made on 2 October 2013. Those orders obliged the parties to engage with a specified psychologist to undertake “reportable psycho-educational assistance to effectively improve individual and co-parenting capacities.”
Almost immediately the father purported to resile from the consent orders. For reasons which are presently not pertinent, the parties did not immediately engage with the relevant psychologist, and instead continued with their hostilities. It does not appear as though any significant improvement has been made in their co-parenting capacity in consequence of that counselling.
The father has brought a number of Contravention Applications against the mother. He wanted those determined in advance of the resumption of the trial. Arrangements were made for Kent J to deal with them, given that findings of credit may need to be made therein, which may have, in consequence, disqualified me from thereafter continuing as the trial judge. For reasons given 29 September 2014, Kent J declined to deal with the Contravention Applications and adjourned them for hearing by me at the conclusion of the resumed trial.
The father has appealed the orders of Kent J. He has previously twice sought to forestall the resumption of this trial pending the determination of that appeal. On both occasions I have refused to do so. In the first such attempt by the father, on 2 February 2015, in ex tempore reasons which I then gave, I specifically determined that the trial should resume before me on a date to be advised to the parties some time in the sittings commencing 13 April 2015 in Cairns. It was subsequently listed to the third week of these sittings, of which 27 April 2015 was the first day. The parties had therefore known since 2 February 2015, at the latest, that the trial of this matter would then resume.
The second occasion when the father to sought adjourn the resumption of this trial was by his Application filed 9 April 2015, which was heard by me on 13 April 2015. In the course of dismissing that Application, I again made it plain that the trial would proceed in April.
It does not appear as though the father has prepared any updating affidavit material, although in saying that I am mindful that he has filed several affidavits since the consent orders in October 2013 dealing with subsequent matters.
THE APPLICATION
It appears uncontroversial that indeed on 21 April 2015 the respondent’s mother suffered a stroke, in consequence of which she was hospitalised. In the course of the hearing of the father’s application for an adjournment, I was provided with a medical certificate, which demonstrates that his mother was discharged from hospital on 24 April. That is, of course, the same day upon which the father swore an affidavit saying that it was then expected that his mother would remain in hospital for some days. From the bar table the father told me that thereafter he has been caring for his mother at his home.
On 22 April 2015 the mother filed an updating affidavit. It extended to some 293 paragraphs. Much of the material in it was adverse to the father. However many of the episodes which she details are already the subject of affidavits filed by the father, and there is little by way of new allegations made in the affidavit.
The father wants to have the opportunity to formally respond to that affidavit. He asserted that doing so orally from the witness box would disadvantage him, because there are recordings and the like which he would wish to use to refute the assertions made by the mother.
During the course of the hearing of the father’s application for adjournment, I explored with him whether or not he could respond within 24 hours by preparing an affidavit comprising a series of bullet points responding to the mother’s affidavit. Unfortunately the father’s response to those queries did not help clarify the situation, but led to him making rather broad allegations about injustice and pre-judgment.
Also during the course of argument I explored the prospect that the father has, by failing to properly prepare for the trial, in fact engineered circumstances which placed him at some form of disadvantage. In a sense, it is plain that indeed the father has not properly prepared for resumption of the hearing, although the extent to which his mother’s hospitalisation last week caused that, is unclear.
The father is a self-represented litigant, and a particularly active one. He has an acquired brain injury, which is one of issues which the trial necessarily focuses upon. It may be consistent with the effects of that injury that he became so focused upon having his Contravention Applications dealt with before the resumption of the trial that he did not appreciate the need to prepare.
There are some practical matters at play as well. Although the further hearing of the trial has been listed for five days, having reviewed the matter, it does not seem likely that there would in fact be five days of hearing required. The estimates of both counsel for the mother and Independent Children's Lawyer is that the trial will conclude within three days. There are presently no reserve matters listed for determination in the Cairns sittings. Therefore the delay of the resumption of the trial to later in the week would neither likely see the matter unable to be then concluded, nor disadvantage other litigants whose matters are awaiting determination.
Ultimately the question becomes one of determining where the interests of justice lie. I am satisfied that the father has in fact not prepared the matter for resumption, perhaps as part of his campaign to effect the hearing of the Contravention Applications before the trial continues. Plainly he will need to traverse the allegations made in the mother’s affidavit, and should be given the opportunity to do so, either by preparing a response affidavit or by giving evidence orally. In any event, in my view he will require some time in order to marshal the relevant material to properly respond.
On the other hand, I was not persuaded that the trial should not resume before me later that week. It is now of considerable vintage, and but for the consent orders of October 2013, would have been finally concluded shortly thereafter. These parties have now been engaged in highly hostile litigation for about five years. In the case of the youngest child, they have been litigating in relation to him virtually all of his life. Even in the case of the oldest child, these parties have been in disputation over him for half his life.
Neither the mother nor the Independent Children's Lawyer asserted that they would suffer any prejudice in the event that the trial were not to proceed on 27 April, but were to proceed later in that week.
Upon balance, I was therefore persuaded that the interests of justice did indeed lie in granting a short adjournment to the father to enable him to prepare for the resumption of the trial.
I therefore determined to adjourn the resumption of the hearing of the matter for 24 hours to enable the father to undertake that preparation.
The father’s Application filed 24 April 2015 is otherwise dismissed.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 16 June 2015.
Associate:
Date: 16 June 2015
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