Graham and Kovacs (No 4)

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FAMILY COURT OF AUSTRALIA

GRAHAM & KOVACS (NO 4) [2015] FamCA 1073

FAMILY LAW – CHILDREN – sole parental responsibility – children to live with the mother – the father be restrained from contacting or attending upon the children’s school – consideration of capacity of the father to be primary carer – where an acquired brain injury affects the fathers behaviour – where overnight time with the father is not considered in the children’s best interest.

FAMILY LAW – PROPERTY – where net financial position is one of debt – where mortgagee has exercised power of sale – where parties found equally liable for debt.

Family Law Act 1975 (Cth) s 60B s 60CA s 60CC s 61DA s 61DAC s 68B s 75 s 79 s 114
Evidence Act 1999 (Cth) s 140

Graham & Kovacs [2014] FamCA 702
Graham & Kovacs [2014] FamCA 802
Graham v Kovacs [2014] FamCA 829
Buljubasic & Buljubasic (1999) FLC 92-865
Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Re Andrew (1996) FLC 92-692
Blinko & Blinko [2015] FamCAFC 146

B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569

APPLICANT: Ms Graham
RESPONDENT: Mr Kovacs
INDEPENDENT CHILDREN’S LAWYER: Susan Gray
FILE NUMBER: CSC 762 of 2010
DATE DELIVERED: 21 October 2015
PLACE DELIVERED: Townsville
PLACE HEARD: Cairns
JUDGMENT OF: Tree J
HEARING DATE: 30 September, 1 and 2 October 2013, 27, 28, 29 and 30 April, 1 May, and 13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wilson
SOLICITORS FOR THE APPLICANT: Sandra Sinclair
THE RESPONDENT: In person excluding 13 August 2015 when there was no appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Susan Gray

Orders

  1. All previous parenting orders are hereby forthwith discharged.

PARENTAL RESPONSIBILITY

  1. The mother have sole parental responsibility for the children B born … 2005; C born … 2007 and D born … 2009 (“the children”), save that she is restrained from changing, or causing the children to be known by, other than their aforementioned names.

LIVING ARRANGEMENTS

  1. The children are to live with the mother.

TIME AND COMMUNICATION WITH THE FATHER

  1. The children C and D are to spend unsupervised time with the father on the first and third Sunday of each calendar month, between 11:00am and 3:00pm, with changeovers to occur at the F Town Contact Centre.

  2. If on any occasion the father fails to attend the Contact Centre by 11:15am to effect changeover of the children so as to spend unsupervised time…

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Details
Case
[2015] FamCA 1073
Decision Date

CaseChat Overview and Summary

In the matter of *Graham and Kovacs (No 4)*, Tree J of the Family Court of Australia considered parenting and property disputes between the parties. The parenting dispute concerned the sole parental responsibility for the children, their living arrangements, and the extent of the father's time and communication with them. The property dispute involved a net financial position of debt, with a mortgagee having exercised its power of sale.

The court was required to determine the most appropriate parenting orders for the children, specifically whether the mother should have sole parental responsibility and for the children to live with her. It also had to consider the father's capacity to be a primary carer, particularly in light of an acquired brain injury affecting his behaviour, and whether overnight time with the father was in the children's best interests. In relation to property, the court needed to address the parties' equal liability for a significant debt arising from a previous mortgage.

Tree J ordered that the mother have sole parental responsibility for the children, who are to live with her. The father is restrained from contacting or attending the children's school, except as provided for in the orders. The children C and D are to spend unsupervised time with the father on the first and third Sunday of each month, with specific conditions regarding attendance and the possibility of suspending further time if the father fails to attend on three consecutive occasions. Additional limited unsupervised time is permitted on specific birthdays and holidays, subject to agreement on an alternative venue and time. The father is to bear all costs associated with contact. Child B is not required to spend time with the father unless she expresses a desire to do so, in which case the same orders will apply. Regarding property, each party is declared the sole beneficial owner of property held in their sole name, and both parties are declared jointly and equally liable for the outstanding mortgage debt.

Orders

Orders of the court

1.

All previous parenting orders are hereby forthwith discharged.

PARENTAL RESPONSIBILITY

2.

The mother have sole parental responsibility for the children B born … 2005; C born … 2007 and D born … 2009 (“the children”), save that she is restrained from changing, or causing the children to be known by, other than their aforementioned names.

LIVING ARRANGEMENTS

3.

The children are to live with the mother.

TIME AND COMMUNICATION WITH THE FATHER

4.

The children C and D are to spend unsupervised time with the father on the first and third Sunday of each calendar month, between 11:00am and 3:00pm, with changeovers to occur at the F Town Contact Centre.

5.

If on any occasion the father fails to attend the Contact Centre by 11:15am to effect changeover of the children so as to spend unsupervised time with him, then the mother may thereupon cancel that occasion and leave with the children.

6.

If the father fails to attend the Contact Centre by 11:15am to effect changeover of the children so as to spend unsupervised time with him on three consecutive occasions, then the mother may thereupon suspend the father spending further time with the children under these orders, unless and until the father advises her that he wishes to resume spending time with the children.

7.

If the father can identify a suitable person or venue other that the F Town Contact Centre for changeovers, to which person or venue the mother agrees (noting that such agreement is not to be unreasonably withheld) then the children C and D are to spend no more than 3 hours of unsupervised time with the father on the further following days:

(a) Christmas Day;

(b) Easter Sunday;

(c) C’s birthday,

(d) D’ birthday;

(e) The father’s birthday

(f) Father’s Day;

with the father to nominate the time at which the 3 hour period commences, save that:

(i) any time on Christmas Day and Easter Sunday is to conclude no later than 12 noon in odd numbered years, and start no earlier than 12 noon in even numbered years;

(ii) if the event falls on a school day, any time on C’s, D’ or the father’s birthdays is to conclude no later than 8:00pm.

8.

The father is to meet any and all costs associated with the parties’ use of any Contact Centre or alternative venue or person under these orders.

9.

The child B is not required to spend time with the father unless she expresses a desire to do so, and if she so does, then orders 4, 5, 6, 7 and 8 will apply to her spending time with the father as if she was a named child in those orders.

10.

In the event that the F Town Contact Centre cannot accommodate the times provided for in these orders, then within 28 days of the date of these orders the parties have liberty to apply to vary them in that respect only.

RETRAINTS AND PERSONAL PROTECTIONS

11.

For the personal protection of the mother and the children and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) unless requested by the principal or his or her delegate, the father is prohibited and restrained from spending time with, or attempting to contact or approach the children, or attending the children’s school other than as provided for in these orders.

PROPERTY

12.

Each of the parties is declared the sole and beneficial owners to the exclusion of the other of all property (including superannuation) presently held in their sole name or in their possession.

13.

Each of the parties is declared to be jointly and equally liable for the debt presently in the sum of $73,246.50 arising from the previous mortgage over K Street, Suburb L in the State of Queensland.

OTHER ORDERS

14.

The Independent Children's Lawyer is forthwith discharged with the thanks of the Court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal (including any application for special leave to appeal or subsequent appeal to the High Court of Australia).

15.

Otherwise all extant Applications are dismissed and the matter is removed from the list of active pending cases.

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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