Graham and Kovacs (No 3) - [2014] FamCA 829

FAMILY COURT OF AUSTRALIA

GRAHAM & KOVACS (NO. 3)

[2014] FamCA 829

FAMILY LAW – CHILDREN – Where orders provided for the children to live with the mother and to spend alternate weekends and holiday time with the father – Where those orders broke down and a series of contravention applications were filed – Where the parenting proceedings were part heard – Whether the contravention applications could be heard and determined discretely from those parenting proceedings – Where the contravention applications should be adjourned to be heard and determined with the trial of the substantive parenting proceedings in this case.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Graham

RESPONDENT:	Mr Kovacs
INDEPENDENT CHILDREN’S LAWYER:	Ms Susan Gray

FILE NUMBER:

CSC

762

2010

DATE DELIVERED:

29 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

29 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Ms Sinclair, Solicitor via video link from Family Court, Cairns Registry
FOR THE RESPONDENT:	In person via video link from Family Court, Cairns Registry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gray, Solicitor via video link from Family Court, Cairns Registry

Orders

It is ordered that:

The Father’s Contravention Applications filed on 2 April 2013, 20 December 2013 and 8 July 2014 be adjourned before the Honourable Justice Tree to a date to be fixed to be heard and determined with the final trial of these proceedings, subject to any further Order of the Honourable Justice Tree.

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 BRISBANE

FILE NUMBER: CSC 762 of 2010

Ms Graham

Applicant

And

Mr Kovacs

Respondent

EX TEMPORE REASONS FOR JUDGMENT

These parenting proceedings concern the three children, B born in 2005 who is now nine years of age, C born in 2007, now seven years of age, and D born in 2009, now aged four (“the children”).
The parenting proceedings proceeded to a trial in September and October of last year before Tree J. In the result the trial was part-heard and Tree J made some interim orders on 2 October 2013 by the consent of the parties, being Ms Graham (“the mother”) and Mr Kovacs (“the father”), pending the further trial. In brief summary those currently operative orders provided for the children to live with the mother and to spend alternate weekends and holiday time with the father.
Those interim orders soon reached a point where they broke down in that it was on 20 December 2013 that the father filed the first of his contravention applications. He has filed contravention applications on 2 April 2013 (mainly in relation to property matters), but on 20 December 2013 and 8 July 2014 has filed contravention applications with respect to the parenting orders.
In circumstances where Tree J was part-heard in the parenting proceedings in September and October 2013, the question arose as to whether the contravention applications could be heard and determined discretely from those parenting proceedings.
I should mention that the reason that the trial remained part-heard is that there was expert evidence before Tree J recommending that there needed to be psychological intervention or counselling for a six month period prior to the final determination of final parenting orders. After the trial was adjourned there was some delay in that process being undertaken but the net effect is that it is expected that the counselling regime should be completed after the six months expire in about February of next year. It would seem that Tree J, by reference to a notation on one of the orders he has made, plans to resume the final parenting trial, if possible, in February of next year.
I first mentioned the contravention applications before me on 1 August this year. However, some events have overtaken that mention in the sense of further events and applications that have been filed. For example, on 20 August 2014 the mother filed an Application in a Case seeking that the orders of 20 October 2013 or at least some paragraphs of them providing for the father to spend time with the children be suspended or set aside. This was apparently due to an incident which occurred in August involving the police. That particular aspect of the matter or the events surrounding it came before Tree J on 27 August 2014 when his Honour then temporarily suspended the father spending time with the children pending the father filing a medical certificate confirming that he was fit and well enough to care for the children.
On 12 September 2014 Tree J was satisfied in relation to the content of the medical certificate that had been provided by the father and he then discharged the suspension order, albeit that he made a provision for the father not to ingest or be under the influence of sleeping tablets or like medication while the children were in his care. It is on the order of 12 September 2014 that Tree J included a notation to the effect that the resumption of the trial of this matter should await the parties finishing their counselling, expected to conclude towards the end of February 2015.
On 24 September Tree J again heard the matter due to the father filing an Application in a Case on 22 September 2014 seeking a recovery order of the children. On 24 September 2014 Tree J ordered that this Application in a Case be adjourned to a date to be fixed in the Cairns sittings in the fortnight commencing 13 October 2014.
By way of broad overview, it is clear on the material that I have read which includes the more recent Reasons for Judgment delivered by Tree J that the same issues surrounding the dispute currently are those which are part of the substantive parenting issues that are before Tree J in the trial of the parenting proceedings.
In short, the mother maintains a case, it seems, that the father is unable to care for the children or that the children are at some risk in terms of their safety in the father’s care. For his part the father contends that the allegations the mother makes are fabricated, that what she says are the views of the children are not their true views and that there is no risk to the children, and that they are happy, when in his care. These are precisely the issues that have been agitated in the parenting proceedings to date and will be further agitated in the parenting proceedings to the conclusion of the trial, albeit that there may be some further events that give some substance to the allegations of each of the parents on either side.
In my judgment it is not possible and nor is it in the best interests of these children for there to be some discrete hearing of one or more contravention applications discrete from the substantive parenting proceedings. In this context it needs to be recognised that amendments made to the Family Law Act 1975 (Cth) (“the Act”) recognise the place of compliance with parenting orders within the Act as distinct from the enforcement powers in the Act as previously existed.
In a relatively recent decision in Caballes & Tallant (2014) FLC 93-596 (“Caballes”) I set out in my judgment the legislative history so far as parenting compliance in terms of the amendments to the Act. In particular, I emphasised the place of Division 12A.
Whilst I was in dissent in that Judgment as to the result in that particular case, nothing that the plurality said so far as I am aware took issue with anything that I had to say about the legislative background to these kinds of applications.
I recorded in that Judgment that in 2000 the Family Law Amendment Act 2000 (Cth) created Division 13A, a new “parenting compliance regime” within Part VII of the Act, which then entirely superseded the enforcement powers contained in Part XIIIA of the Act so far as orders affecting children are concerned.
There was then by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) a revision of Division 13A of Part VII and Division 12A was introduced into Part VII of the Act.
Importantly for present purposes the legislature determined that the provisions of Division 12A should apply to contravention applications in respect of orders affecting children, given that such applications were within Part VII of the Act (see section 69ZM). I need not restate here in full what I set out in my decision in Caballes about the effect of those amendments, but briefly stated there are important consequences of Division 12A applying to proceedings of this type, including the application of the principles expressed in s 69ZN.
Briefly, a Court is required to consider the needs of the children concerned and the impact of the proceedings, given that contravention applications of parenting orders are now child related proceedings within the meaning of the Act. The amendments now include s 70NEB, subsection (c), which includes as part of the powers of the Court, the power to adjourn the proceedings, that is the contravention proceedings, to allow either or both of the parties to the primary order to apply for a further parenting order under Part VII, which discharges, varies, or suspends the primary order or revives some or all of an earlier parenting order. I interpolate here that both parents indeed do seek at least a variation if not the discharge of the prevailing parenting order that was made on 2 October 2013.
Section 65D sets out the Court’s powers to make parenting orders and in particular in subsection (3) provides:
If the application for the parenting order was made as a result of the adjournment under paragraph 70NEB(1)(c) of proceedings under Subdivision E of Division 13A of Part VII:
(a) the court must hear and determine the application as soon as practicable; and
(b) if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that subdivision.
(Emphasis added)
In other words, what the Act seeks to do is to elevate the children’s best interests as the primary consideration. Rather than having contravention applications which in usual civil proceedings involve penalty of a person in contravention, the Act elevates best interests in the context of parenting orders to ensure that the Court reaches orders which are in the best interests of the children. To achieve that outcome in circumstances where the primary parenting order may be sought to be varied or discharged by a parent, that process is elevated over the contravention proceedings themselves, which may ultimately be dismissed in light of the determination of parenting orders.
In the context of this case it means that what is of primary importance is the determination of final parenting orders in the interests of these children. It may well be that on a determination of final parenting orders the contravention applications might be dismissed on the basis that they are no longer of any utility. For example, if the father were to succeed in his applications he makes for final parenting orders there may well be little point in entertaining a contravention application of a previous order that no longer has any practical utility. Conversely, the issues that arise on the parenting proceedings, if, for example, the mother makes out a case that there is any kind of risk may limit what the Court could do my way of any remedy for any technical breach or contravention of a previous order.
The other aspect of this case is that Tree J will soon hear the matter again in relation to the father’s Application in a Case for a recovery order and has listed those proceedings to be heard in the Cairns sittings commencing in October 2014. Whether for the same reasons I have outlined his Honour adjourns that application to the trial is of course a matter entirely for his Honour.
In my judgment, it is consistent with the principles expressed in Division 12A and the sections to which I have referred for the father’s contravention applications to be adjourned to be considered with the trial of the substantive parenting proceedings in this case. Tree J is seized of the matter in terms of the recovery order application that he will hear in October 2014 and if it be the case that interim orders ought be made pending the final hearing and determination of the parenting proceedings in February 2015, Tree J, given his involvement in the matter in the manners described, is in a far superior decision to another judge to hear and determine any interim application.
Moreover, it seems to me having regard to the scheme of the legislation to which I have referred, that it is preferable that the judge seized of the final parenting proceedings, as Tree J is, hears and determines any interim applications pending the final outcome of those parenting orders applications.
For these reasons I adjourn the contravention applications to be heard and determined with the final trial of the proceedings subject to any further order Tree J might make in that respect. Otherwise it does not seem to me that there is any application I need to deal with today, and all other pending applications should be adjourned to be heard and determined by Tree J.
For these reasons I make the orders set out at the commencement of these Reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 29 September 2014.

Associate:

Date: 29 September 2014