GRAHAM & KOVACS - [2016] FamCA 281

FAMILY COURT OF AUSTRALIA

GRAHAM & KOVACS

[2016] FamCA 281

FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of process - vexatious proceeding orders pursuant to s102Q restraining father from instituting further proceedings without leave.

FAMILY LAW - PRACTICE AND PROCEDURE – Adjournments – Contravention proceedings and applications – Application by father to give evidence by telephone – Where Court not persuaded that the father’s assertions are sufficient to justify him being permitted to appear by telephone.

Family Law Act 1975 (Cth) ss 102Q, 102QB

Buljubasic & Buljubasic [1999] FamCA 474; 1999 FLC 92-865
Cannon & Acres [2014] FamCA 104
Marsden & Winch [2013] FamCAFC 177

APPLICANT:

Ms Graham

RESPONDENT:

Mr Kovacs

INDEPENDENT CHILDREN’S LAWYER:

Ms Gray

FILE NUMBER:

CSC

762

2010

DATE DELIVERED:

29 April 2016

PLACE DELIVERED:

Chambers

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

11 February 2016

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Sandra Sinclair Lawyers

THE RESPONDENT:

No appearance

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Susan Gray

Orders

The father’s Application in a Case - Contravention filed 2 December 2015 is struck out.
To the extent is has not been previously determined, the father’s Application in a Case filed 2 December 2015 is struck out.
The mother’s Initiating Application filed 27 October 2015 is dismissed.
Otherwise all outstanding applications in the trial division be dismissed and the matter is removed from the list of active pending cases.

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 CAIRNS

FILE NUMBER: CSC762/2010

Ms Graham

Applicant

And

Mr Kovacs

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 29 October 2015, for reasons which I published on 21 October 2015, I made final parenting and property orders in the proceedings between the parties. Insofar as parenting orders were made, they provided that Ms Graham (“the mother”) have sole parental responsibility for the parties’ three children, and for the children to live with her. However those orders also provided for the children to spend unsupervised time with Mr Kovacs (“the father”) on two occasions every month and provided the opportunity, if an appropriate changeover venue or supervisor could be found, for them to spend special days with the father as well.
From those orders the father has brought perhaps as many as three appeals. On 2 December 2015 he also filed two further applications. The first was an Application in a Case which sought orders that the application be dealt with by a judge other than myself, together with an order staying the orders which I had made both on 29 October 2015 and earlier on 13 August 2015; the second was a Contravention Application which alleged that the mother had failed to comply in certain respects with my orders made on 29 October.
On 10 December 2015 I dismissed that part of the father’s Application in a…

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.

Continue reading GRAHAM & KOVACS

Details

AGLC: GRAHAM & KOVACS [2016] FamCA 281
Case: [2016] FamCA 281
Decision Date: 29 April 2016

CaseChat Overview and Summary

The parties in this matter were the father and the mother. The dispute concerned various applications and contravention proceedings filed by the father, as well as the mother's initiating application. The case was heard by Tree J in the Family Court of Australia.

The court was required to determine whether the father's applications constituted an abuse of process and whether he should be restrained from instituting further proceedings without leave. Additionally, the court considered the father's application to give evidence by telephone in contravention proceedings and applications.

Tree J found that the father's conduct amounted to an abuse of process, justifying orders under s 102Q of the *Family Law Act 1975* (Cth) to restrain him from commencing further proceedings without leave. The court was not persuaded that the father's assertions were sufficient to justify permitting him to appear by telephone, indicating a lack of compelling reasons for such an accommodation.

Consequently, the father's Application in a Case filed on 2 December 2015 was struck out. The mother's Initiating Application filed on 27 October 2015 was dismissed. All other outstanding applications in the trial division were dismissed, and the matter was removed from the list of active pending cases.

Orders

Orders of the court

The father’s Application in a Case - Contravention filed 2 December 2015 is struck out.

To the extent is has not been previously determined, the father’s Application in a Case filed 2 December 2015 is struck out.

The mother’s Initiating Application filed 27 October 2015 is dismissed.

Otherwise all outstanding applications in the trial division be 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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