Graham and Kovacs (No 2) - [2014] FamCA 802

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

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…

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: [2014] FamCA 802
Decision Date: 12 September 2014

CaseChat Overview and Summary

This matter concerned an application before Justice Tree in the Family Court of Australia, arising from proceedings between the father and mother concerning the welfare of their children. The specific dispute addressed in these orders related to the father's use of sleeping tablets and the implications for his care of the children.

The primary legal issue before the Court was whether the father's ingestion or being under the influence of sleeping tablets or similar medication posed a risk to the children, and if so, what orders were necessary to ensure their safety and well-being. The Court also considered the timing of the resumption of the trial, which was contingent on the parties completing counselling.

Justice Tree reasoned that the father's use of sleeping tablets was a matter of concern for the children's safety. Consequently, the Court ordered that the father must not ingest or be under the influence or effect of sleeping tablets or like medication whilst the children are in his care. The Court further ordered that the resumption of the trial would be deferred until the parties concluded their counselling with Mr R, which was anticipated to be towards the end of February 2015.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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