GRAHAM & KOVACS

[2015] FamCA 127

FAMILY COURT OF AUSTRALIA

GRAHAM & KOVACS [2015] FamCA 127

FAMILY LAW – CHILDREN – Child Related Proceedings – Where orders previously made adjourning further hearing of the mother’s Application in a Case filed 20 August 2014 which sought to vary orders pertaining to living arrangements of the children made on an interim basis by consent on 2 October 2013 – Where mother by her solicitor did not seeks that the Application in a Case be determined, but rather that the trial of this matter should resume as soon as possible – Where father has on foot an appeal against orders dealing with some alleged contraventions of interim consent orders – Where father urges that the trial should not resume so as that appeal can be determined – Where Court noted the father will suffer no prejudice by the trial resuming prior to the hearing of the appeal – Where trial to resume on a date to be advised in sittings commencing April 2015.

FAMILY LAW – CHILDREN – With Whom a Child Lives – Where father seeks to change children’s living arrangements as outlined in the consent orders which provide for the children to live with the mother – Where father seeks an order that the children live with him – Where interim consent orders contemplated that the parties would engage in intensive counselling designed to improve communication between them in relation to the children – Where in a notation of the consent orders the parties noted that they intended to avoid further litigation and acknowledged they would strive to resolve all parenting issues by agreement – Where parties have been engaged in nigh ceaseless warfare since the making of the consent orders – Where counselling did not go smoothly and appears to have been wholly unsuccessful – Where trial part-heard and due to resume in about two months – Where Court not persuaded that the orders sought by the father are in the best interests of the children – Where Application in a Case dismissed.

FAMILY LAW – CHILDREN – Parental Responsibility – Where father seeks to change consent orders which provide that the mother have sole parental responsibility to an order that the father have sole parental responsibility – Where trial part-heard and due to resume in about two months – Where Court noted issues could be more fully undertaken at trial rather than by summary examination in this interim application - Where Court not persuaded that the orders sought by the father are in the best interests of the children – Where Application in a Case dismissed.

FAMILY LAW – ENFORCEMENT OF ORDERS – Recovery Order – Where by Application in a Case the father seeks recovery of the children – Where orders which presently prevail in relation to the children are consent orders which provide that the children be in the father’s care for alternate weekends – Where father alleges the mother has been inconsistent with weekend care – Where on no view would the father under the orders be entitled to have the children in his care as at today – Where it appears the father is seeking to have a recovery order not specific to today, but rather as a weapon available to him to deploy at any time that he feels the mother is in breach of the orders – Where such an order would not be in the best interests of the children – Where Application dismissed.

Family Law Act 1975 (Cth) s 60CC, 69ZN

APPLICANT: Ms Graham

RESPONDENT: Mr Kovacs

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 762 of 2010

DATE DELIVERED: 2 February 2015

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 2 February

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Sinclair

THE RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Susan Gray

Orders

1. The trial of this matter is to resume on a date and time to be advised to the parties by the Registry in the sittings commencing 13 April in Cairns before Justice Tree with an estimated hearing time of four to five days.

2. The father’s Application filed 29 September 2014 seeking a Recovery Order is dismissed.

3. The father’s Response to an Application in a Case filed 19 September 2014 is dismissed.  

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: CSC 762 of 2010

Ms Graham

Applicant

And

Mr Kovacs

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has come before me today in a duty list, seemingly as a result of orders made last year which adjourned the further hearing of the mother’s Application in a Case filed 20 August 2014.  In substance, that application sought to vary orders pertaining to the living arrangements of the children the subject of these proceedings, those orders having been made on 2 October 2013.  The mother, who appeared today by her solicitor, Ms Sinclair, did not in fact seek that the Application in a Case filed 20 August 2014 be determined, but rather urged that the trial of this matter should resume as soon as possible.

2. These proceedings have a somewhat unusual history.  The trial of the respective competing parenting applications concluded on an interim basis by consent orders which I made on 2 October 2013.  Those orders contemplated that the parties would be engaged in an intensive counselling regime designed to facilitate improved communication between them in relation to children’s matters.  It was anticipated that the interim regime would operate for at least six months and that the trial, if needs be, would thereafter resume. 

3. However, by notation A to the consent orders, it was said that it was the intention of the parties to avoid further litigation, and that they acknowledged they would strive to resolve all parenting issues by agreement using certain machinery provisions detailed in the consent orders.  It is unfortunate that, notwithstanding the counselling regime implemented and the parties’ acknowledged intention to try and resolve parenting issues by agreement, that since 2 October 2013, they have been engaged in nigh ceaseless warfare.  It is unnecessary to recite the history in relation to counselling; suffice to say it did not go smoothly and, when ultimately it concluded this year, it appears to have been wholly unsuccessful. 

4. These proceedings have now been outstanding for too long, although the parties have had every opportunity afforded to them, both by the orders of 2 October 2013 and by the continuation of opportunities for counselling engaged in by the parties, to resolve their differences.  There comes a point where litigation must conclude.  The father, who appears for himself in these proceedings, urges that the trial should not resume as soon as possible, because he has on foot an appeal against orders of Kent J made on 29 September 2014.  In broad terms, his Honour was then dealing with some alleged contraventions of the orders of 2 October 2013, or perhaps other orders, but his Honour declined to deal with them given that the trial was part-heard and would shortly resume, it being then thought that would occur perhaps as soon as these present sittings, in February 2015. 

5. From those orders, the father has appealed and, I am told without dissent from the bar table, that his appeal is likely to come on in about May of this year.  Whilst the utility of that appeal, if there is a resumed trial prior to then, might be a matter that would be of some moment, the father urges that the trial should not resume, so as that appeal can be determined.  He apparently perceives he will obtain some forensic benefit in the trial from any success in that appeal, however, I should make it plain that the orders of Kent J contemplated that the contraventions would come on for hearing at the conclusion of the trial of these proceedings.  Therefore, it is quite likely that the trial and the contraventions could be heard, and perhaps determined, by the time of any appeal in May of this year. 

6. On the other hand, if the trial were to await the conclusion of the appeal, and potentially the hearing of the father’s contravention applications, the conclusion of the trial could be delayed by more than a year, and perhaps even longer.  That would be most unfortunate.  The reality is that the trial only abated when the parties determined to use negotiation as the means for resolving their disputes in the future.  They have failed to do so; it is plain they are unlikely to do so.  The reality is that the trial must resume. 

7. Whilst I have taken into account the father’s perceptions that there would be some forensic advantage accruing to him by having the contraventions determined first, I cannot discern any such benefit.  He could cross-examine the mother at trial by reference to her alleged contraventions, or at least the conduct which he says comprises the contravention.  He will suffer no prejudice by the trial resuming prior to hearing of his appeal.  I therefore determine that the trial should resume before me on a date to be advised to the parties sometime in the sittings commencing 13 April 2015 in Cairns. 

RECORDED  :  NOT TRANSCRIBED

1. Before me this morning is an Application in a Case filed 22 September 2014 by the father.  It seeks that the Application be dealt with urgently and, specifically by proposed order 2, seeks:

   The Marshall of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover children [B Kovacs], born … 2005, [C Kovacs], born … 2007, and [D Kovacs], born … 2009, and deliver the said children to the father, [Mr Kovacs], and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any reasonable time cause to believe that the children may be found.

2. When the matter first came on for hearing before me in September 2014 or shortly thereafter, the father was persuaded that it would be inappropriate to have the children seized by police officers to return to his care, at least at that point in time.  The matter was then adjourned, but has ultimately been agitated again this morning by the father.

3. In fact, the orders which presently prevail in relation to the children are the orders which were made by consent of the parties on 2 October 2013.  They provide for the children being in the father’s care for alternate weekends from Friday after school until Monday morning, and for one week of each gazetted school holiday period.  In relation to the two younger children, in fact the father has only a week ago concluded his one week gazetted school holiday period in relation to the children.

4. He complains that the mother has been inconsistent in relation to weekend care in relation to the two children, but it is plain that on no view would the father, under the orders of 2 October 2013, be entitled to have in his care any of the three children as at today.  Rather, it appears as though what the father is seeking is to have a recovery order not specific to today, but rather as a weapon that is available for him to deploy at any time that he feels as though the mother is in breach of the orders, and that the children have not been placed in his care pursuant to the orders.

5. In my view, such an order either could not be made or, alternatively, should not be made, because the Court would need to be appraised, in relation to any future circumstances, of the reasons why it is that the mother may have withheld children, of the reasons why it is that the father is saying that the children should come into his care in conformity with the orders and otherwise, the relevant and up-to-date material from which the Court could determine where the best interests of the children lie.  It could not be in the best interests of the children to make a recovery order which could operate at any time in any circumstances in the future when the father chose to deploy it.

6. As regards the eldest child, B, it appears that the father has not spent any time with her for some months now.  The Court ordered a Child-inclusive Conference to be conducted between a Court counsellor and the eldest child, which occurred on 20 November 2014.  In that report of that conference, which is dated 21 November 2014, there are some disturbing disclosures made by B.  Particularly, it is said:

   [B] described herself as having a close relationship with her mother and talked about her mother positively throughout the interview.  [B] stated her mother uses time out and withdrawing privileges to manage difficult behaviour.  [B] stated, “When I back-chat him, he is really mean,” referring to her father.  [B] stated that her father hits herself and her brother [C] with his hand on their arms, thigh and bottom.  She stated that her father also hits her and [C] on some occasions with a belt.  When asked what would need to be different to enable her to feel safe to spend time with her father, [B] stated, “Not angry any more.  No hitting.”  She then stated she was most nervous about spending time with him at night.

7. The report then goes on to deal with a relatively lengthy recollection by B of an event that I have dealt with in previous reasons in these matters, involving the police forcibly entering the father’s home on a night when the children were in his care, his arrest and his conduct generally on that night.  That is a matter which no doubt will be the subject of exploration at the resumed trial.  However, importantly, in the child-inclusive conference memorandum, B expressed her wishes as follows (including some recommendations):

   [B] was able to described things she enjoyed doing with her father when she had previously spent time with him.  [B] described her primary fear as spending overnight time with the father.  Should [B] recommence spending time with her father, this would be best approached by first commencing with short visits during the day and increasing time as [B] demonstrates confidence in her father’s ability to keep her safe, regulate his own emotions and refrain from using physical punishment.  Until [B] has developed a sense of safety and security in relationship with her father, overnight time has the potential to cause her significant distress.

8. Therefore, insofar as the application would seek the return of B spending time with the father, it would be appreciated that there are real concerns as to her emotional and psychological security and, moreover, the recommendations are that even if there were to be a reintroduction of time, it should be in a different format to that which is in the orders of 2 October 2013.  For that reason alone in relation to B, I could not be satisfied that the recovery order sought by the father would be in her best interests and would decline to make the order on that basis alone in relation to B.

9. I therefore decline to make the recovery order as sought by the application of 22 September 2014 and dismiss that application.

RECORDED  :  NOT TRANSCRIBED

1. By Response to an Application in a Case filed 19 September 2014, the father seeks to substantially change orders – interim orders – which were made by consent midway during the course of a trial on 2 October 2013.  Those orders, in substance, saw the parties obliged to engage in what was intended to be intensive counselling with a view to improving the communication between them which, to that date, had been poor.  Under the orders, the children were to spend alternate weekends with the father from after school or day care, on Friday until Monday morning, and for one week in gazetted school holiday periods. 

2. It was intended – or perhaps hoped – that the trial would not need to continue but rather that the mechanism contemplated by the orders for the parties’ negotiating to agreement about children’s matters in the future would preclude any necessity for further hearing.  That hope has unfortunately proved to be a false one. 

3. By his Response, the father seeks that the children change from living with the mother as they were under the orders of 2 October 2013, to living with him.  He then proposes that the children would have fortnightly weekend time with the mother, and for one week for school holiday periods. 

4. He also seeks a change in parental responsibility.  Under the orders of 2 October 2013, the mother had sole parental responsibility.  The father now seeks sole parental responsibility.  He otherwise seeks to discharge the orders of 2 October except, it seems, one of the orders which required the parties to engage in therapy. 

5. This application is not determined in a vacuum.  I have earlier this morning fixed the resumption of the trial of these proceedings to commence on 13 April 2015 or such date in the three week sittings thereafter as advised to the parties.  Therefore, what the father is asking to do is to wholly change, indeed reverse, the arrangements which have prevailed since 2 October 2013 so that come the time of trial – or, more precisely, the resumption of the trial – a totally different regime of orders to those contemplated on 2 October would prevail. 

6. Division 12A of Part VII of the Family Law Act contains in section 69ZN the principles for conducting child-related proceedings.  Significantly, section 69ZN(1) says: 

   The Court must give effect to the principles in this section in performing duties and exercising powers in relation to child-related proceedings and in making other decisions about the conduct of child-related proceedings. 

7. Amongst the principles is principle 2, namely that: 

   The Court is to actively direct, control and manage the conduct of the proceedings. 

8. In my view, that provision – particularly given the mandatory language in section 69ZN – informs the way in which a court should approach dealing with an application for orders such as that brought by the father on 19 September 2014, in the context of a part-heard trial with interim orders which trial is to resume in about two months time.  In my view, active direction, control and management of the proceedings would require the Court to be mindful that the trial is about to recommence and hence the proper opportunity for the exploration of the sorts of issues which are necessarily raised by the Response could be more fully undertaken then, than by a summary examination on an interim application such as this. 

9. Nonetheless, in the event I am wrong in so concluding, I will proceed to consider in a summary way the issues which would impact upon the best interests of the children, and particularly those which would stand to determine the application which the father has brought. 

10. I turn firstly to consider the primary considerations.  The first is the benefit of the children of having a meaningful relationship with both of the children’s parents.  The orders of 2 October 2013 would, in my view, enable the children to have a meaningful relationship with both of their parents.  However, I am troubled that the complete reversing of those arrangements in relation to all three children would impact substantially upon the relationship which they have with their mother, with whom they have lived for most of their lives.  Therefore, I am troubled that the orders that the father is seeking would impact upon the capacity of the children to enjoy the meaningful relationship which they have had with their mother.  That said, it may enhance the relationship which they enjoy with their father.  However, as this Court has observed on many occasions in the past, quantity of time does not necessarily equate to quality of time. 

11. The next primary consideration is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Here, there are different considerations that apply in relation to the three children, particularly in light of a child-inclusive memorandum dated 21 November 2014.  In that memorandum, a family consultant reported in relation to the eldest child, B, and her experience of the father on an occasion when the police forcibly entered his home and arrested him when he had the three children in his care.  In that report, passages of which I have recited in earlier ex tempore reasons delivered today in the course of this proceeding, the child expressed fear spending overnight time with the father.  Further the consultant recommended that should B recommence spending time with the father, this would best be approached by first commencing with short visits during the day and increasing time as B demonstrates confidence in her father’s ability to keep her safe, regulate his own emotions and refrain from using physical punishment. 

1. Plainly, the child would experience fear and emotional upset at returning into her father’s care for the sort of periods that the father is seeking by this application and, specifically, only spending time with her mother, who she reports having a close relationship with, for one week of school holidays and alternate weekends. 

2. That consideration may not loom as large in relation to the younger two children; the material does not enable me to conclude either way in relation to that.  However, as I say, in relation to the child B, it is plain that she is experiencing fear at the prospect of returning to the father’s overnight care, and the prescription that was made in November 2014 was one of small steps, taken slowly. 

3. The balance of the considerations contained within the additional considerations in section 60CC(3) do not loom large in these proceedings, although the allegations which are raised by the events of the occasion when the father was arrested while the children were in his care necessarily cause some query as to his capacity to provide for the needs of the children, including emotional and intellectual needs, if they were in his care for lengthy periods of time such as his orders would contemplate. 

4. As I say, all of these matters are being considered in the context of a shortly to resume trial.  They may be properly and more fulsomely investigated in the course of the resumed hearing and presumably will be.  In interim proceedings such as this, it is well established that the Court often acts on incomplete material and without the opportunity for cross-examination to test it and particularly the usual opportunities which cross-examination gives the Court in determining which of the parties’ accounts should be preferred. 

5. I am not persuaded, upon balance, that the orders which are sought by the father are in the children’s best interests. On the material before me, the orders thus far made on 2 October 2013 appear to have operated with varying success with the three children. However, in my view, the appropriate response of the Court, whether considering the matter under division 12A or considering it under section 60CC and the other provisions dealing with determining the best interests of children, do not see the orders sought by the father in his Response as appropriate to be made in this case at this time.

6. I therefore will dismiss the father’s Response to an Application in a Case filed 19 September 2014. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 February 2015.

Associate: 

Date:  2 February 2015