Graham and Kovacs (No 2)
[2014] FamCA 802
•12 September 2014
FAMILY COURT OF AUSTRALIA
| GRAHAM & KOVACS (NO. 2) | [2014] FamCA 802 |
| FAMILY LAW – CHILDREN – Variation of Orders – Best Interest of the Child – Where previous orders provided for the suspension of the time the father was to spend with the children – Where the orders provided such time would be reinstated upon the father filing a medical certificate from his regular treating practitioner stating that he is fit and well enough to care for the children on each alternate weekend – Where the father has now produced such medical certificate – Where Court noted there was no reason to think the certificate does not comply with the previous orders and was not persuaded that is should not be given the weight which it should bear – Where the Independent Children’s Lawyer raised a further concern in relation to the father having previously taken sleeping tablets whilst having the care of the children – Where father consented to an order restraining him from ingesting sleeping tablets or like medication during times he has the care of the children – Where Court discharged previous order which provided for the suspension of time with the father – Where Court not persuaded that the father is at the present time such a risk of harm to the children that it is in their best interests. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Graham |
| RESPONDENT: | Mr Kovacs |
| INDEPENDENT CHILDREN’S LAWYER: | Ms S Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| DATE DELIVERED: | 12 September 2014 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 12 September 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Sinclair |
| SOLICITORS FOR THE APPLICANT: | Sandra Sinclair |
| THE RESPONDENT: | In person |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
Order 1 of the Orders of Justice Tree made 27 August 2014 is forthwith discharged.
The father is not to ingest or be under the influence or effect of sleeping tablets or like medication whilst the children are in his care.
NOTATION:
A.The resumption of the trial of this matter should await the parties finishing their counselling with Mr R which is expected to conclude towards the end of February 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Graham & Kovacs 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 TOWNSVILLE |
FILE NUMBER: CSC 762 of 2010
| Ms Graham |
Applicant
And
| Mr Kovacs |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 27 August I ordered, for reasons which I delivered orally on that day, that until further order the time which the three children the subject of these proceedings, would otherwise have spent with their father pursuant to orders I made on 2 October 2013, be suspended. However, I further ordered that the children’s time with the father pursuant to the October 2013 orders was to be reinstated upon (a) the father filing a medical certificate from his regular treating medical practitioner stating that he is fit and well enough to care for the children on each alternate weekend and (b) that I ordered the discharge of order 1, made 27 August 2014.
By affidavit, sworn or affirmed 5 September 2014, the father has now produced a medical certificate from his usual medical practitioner which says that he consulted him on 3 September and that, in the medical practitioner’s view, the father will be fit and well enough to care for the children on alternate weekends. The certificate continued that it was given in good faith in keeping with the information supplied by the father and the doctor’s clinical assessment.
The only matters which concerned me on 27 August 2014 and founded the orders suspending the father’s time with the children were, firstly, the events of 16 August which were dealt with in those reasons and, secondly, the father’s own report that since 16 August he had been “shaking all nights with high temperature, headaches, burning sensations and in pain in his whole body.” Unsurprisingly, given that history, there was a medical practitioner’s certificate certifying that the father was unfit to attend court between 25 August and 6 September. That is the same medical practitioner who has now certified that the father is fit and well enough to care for the children on alternate weekends.
As I indicated in my oral reasons given on 27 August, my preliminary view is that, as an isolated event, the occasion and the events of 16 August may not be sufficient to persuade me that the father presents such a risk of harm to the children that his time to them should be suspended. However, that is a matter which can be addressed when the mother’s application comes before me for hearing in October.
The only other matters which were of concern to me on 27 August were the father’s admitted physical and emotional turmoil arising from the events of 16 August, and the fact that his medical practitioner certified, as he did, that the father was unfit to attend court until 6 September. I am satisfied, on the basis of the further report from the doctor, that the concerns which he had as at 27 August have abated.
Ms Sinclair, who appears for the mother, opposes the discharge of order 1 of the orders made 27 August 2014 on several grounds. Firstly, she says that the Independent Children’s Lawyer’s subpoena to the Queensland Police Service arising from the events of 16 August is not yet been returnable. Secondly, she says that the medical certificate is very brief, running only to some four or so lines. She further says that there is no evidence of what the father may have said to the treating practitioner.
However, there is nothing in that material which persuades me that I should not give the weight to the doctor’s certificate which it apparently, on its face, should bear. There is no reason to doubt that the doctor did not, in fact, undertake a clinical assessment. There is no reason to doubt that he did not seek information from the father as to his state of health, and there is no other reason to think that the certificate in some way, shape or form does not comply with the orders that I made on 27 August.
Ms Gray, the Independent Children’s Lawyer, properly raised a further concern arising from 16 August, namely that whilst the father had the care of the children he had taken a sleeping tablet. The father has indicated that he will consent to an order restraining him from ingesting sleeping tablets or like medication during times when he may have the children in his care. I propose to make such an order.
I also propose to make an order discharging order 1 of the orders that I made on 27 August 2014. I am not persuaded, on the material before me, that the father is at the present time such a risk of harm to the children that it is in their best interests that their time with him be suspended any longer. There will, therefore, be the orders that I have articulated.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 September 2014.
Associate:
Date: 12 September 2014
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