GRAHAM & KOVACS
[2014] FamCA 702
•27 August 2014
FAMILY COURT OF AUSTRALIA
| GRAHAM & KOVACS | [2014] FamCA 702 |
| FAMILY LAW – CHILDREN – Orders – Suspension of Time - Best Interests of the Children – Where mother sought the suspension of orders insofar as they permitted the father to spend time with the children – Where events occurred are controversial but resulted in police attending the father’s home, placing the father in handcuffs and taking him into custody whilst the children were in the care of the father – Where one or more of the children were aware of the events as they were occurring and understandably upset – Where concerns as to whether the father would presently be in a position to be able to provide adequate care for the children – Where father conceded that he was not presently in sufficiently good health to be able to care for the children on the upcoming weekend but would be for subsequent weekends – Where court noted its protective obligations would require more than the father’s self-diagnosis as to his recovery – Where court satisfied that it was in the best interests of the children that the father provide a certificate to the court from his normal medical practitioner certifying that in their opinion the father is of sufficient health and ability to care for the children on each alternate weekend – Where time that the father would otherwise spend with the children under the orders was suspended. |
| Family Law Act 1975 (Cth) |
| Rice v Asplund [1979] FLC 90-725 |
| APPLICANT: | Ms Graham |
| RESPONDENT: | Mr Kovacs |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| DATE DELIVERED: | 27 August 2014 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 27 August 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Sandra Sinclair |
| THE RESPONDENT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Susan Gray |
Orders
Until further order, the time which the children B born … 2005, C born … 2007 and D born …2009 would otherwise have spent with the father pursuant to Order 5 of the Orders of Justice Tree made on 2 October 2013 be forthwith suspended.
The children’s time with the father pursuant to the said Order 5 is to be re-instituted upon:
(a)the father filing a Medical Certificate from his regular treating Medical Practitioner, Dr E, stating that he is fit and well enough to care for the children on each alternate weekend; and
(b)an order of this Court discharging Order 1 hereof.
Upon the father filing the Medical Certificate referred to in Order 2(a) hereof, he has liberty to apply on short notice to the parties to discharge Order 1.
On or before 4:00pm Friday 19 September 2014 the Independent Children's Lawyer and the father make file and serve any affidavit material upon which they intend to rely upon the resumed hearing of the mother’s Application in a Case filed 20 August 2014.
On or before 4:00pm Friday 26 September 2014 the mother make file and serve any material in response to any material filed by the Independent Children's Lawyer and the father pursuant to Order 4 hereof.
The further hearing of the mother’s Application in a Case filed 20 August be adjourned to a date and time to be advised to the parties in the next sittings of the Court in Cairns week commencing 6 October 2014, with an estimated hearing time of 2 hours.
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
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
Pursuant to interim consent orders made on 2 October 2013, on the Saturday evening of 16 August 2014, the three children the subject of these proceedings, being B, aged nine, C, aged seven and D, aged four, were in the father’s care. Also residing with him at that time was his older daughter from an earlier relationship. The events that occurred on 16 April appear to be somewhat controversial, however, it seems there is no dispute that, for whatever reason, the police attended the father’s home some short time prior to midnight on the Saturday night, and burst into the house by breaking through the front door, placed the father in handcuffs and transported him, at least according to the father, in a highly physical way, to the police car outside.
It appears as though this caused the father both physical and emotional distress, and the father has suffered some unfortunate consequences, including bruising and swelling to parts of his body. His emotional distress has evidenced itself in a variety of ways which I shall detail shortly.
By application made 20 August 2014 the mother sought the suspension of the orders made in October insofar as, amongst other things, they permitted the father to spend time with the children. Her reasons for doing so arise mostly, if not solely, from the events of 16 August.
In her affidavit filed on 20 August 2014, she sets out what she has been told by the children about their experiences on the night in question, and their subsequent concerns in relation to spending time with the father. However, it is not presently possible for me to make any findings as to whether or not the mother is accurately reporting what the children have said to her. The most that I can conclude on any confident basis is that, indeed, there was an unfortunate episode in which the father was taken into police custody on the night and that the children were present in the home, and it appears as though one or more children was aware of the events as they were occurring and understandably upset.
The father initially intimated by correspondence to the court that he did not intend to appear at the hearing of the mother’s application today because he was too unwell. Indeed, he provided the court with a medical certificate from his general medical practitioner, which identifies that, in that doctor’s opinion, the father was unfit to attend court between 25 August and 6 September of this year. That appears consistent with what the father advised the court in his communications to the Registry, namely:
Since that incident – [I interpolate the incident of 16 August] – I feel very sick again. I have been shaking all nights, with high temperature, headaches, burning sensations and in pain in my whole body.
Plainly, the concerns of the doctor, and the father’s reports, are matters of real concern as to whether he would presently be in a position to be able to provide adequate care for the three children if they were to come back into his care on alternate weekends. Indeed, in his submissions to me, the father conceded that he was not presently in sufficiently good health to be able to care for the children this coming weekend. He did, however, believe that he would be in sufficient health in the following weekends such that the children should then return into his care.
However, in my view, the protective obligations of the court in relation to children, including, I note, D, who is only four years of age, would require something more than the father’s self-diagnosis of his recovery. I suggested to the father than an appropriate mechanism for the court to be satisfied that he was able to care for the children would be that his general medical practitioner so certified, however, the father opposed such an order, in part because he believes that he has been the victim of a police conspiracy against him involving the mother, and also because he believes that he is the underdog in these proceedings.
Unfortunately, neither of those matters go to the issue which concerns me, namely, the safety of the children when in the father’s unsupervised care on a weekend. I am therefore satisfied that it is in the children’s best interests that the father’s time with the children be suspended, and further, as a precondition to the father seeking to resume spending time with the children pursuant to the orders of October last year, he provide a certificate to the court from his usual medical practitioner certifying that, in their opinion, the father is of sufficient health to be able to care for the children on each alternate weekend. Upon that occurring, I will consider whether the time that the father would otherwise spend with the children under those orders should be reinstated.
Obviously, in addition to the orders which I have previously articulated, there will also be an order that the father have liberty to apply on short notice by telephone to have the orders of 20 October reinstated.
It is also appropriate if I record that a matter of some concern which I would expect the parties to address me upon the relisting of the mother’s application for the suspension of the orders, is what sufficient change of circumstances has occurred since the orders were made in October last year such that the rule of Rice & Asplund would be satisfied.
I should say that my preliminary view, subject to any further evidence and submissions, is that an isolated event, which the court cannot, on an interim hearing, make final findings of fact in relation to, may not be sufficient for the mother to discharge the onus which is upon her. However, as I say, I have not formed any final view on the matter, other than that it is a matter that clearly the mother will need to address by evidence and submission in due course.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 27 August 2014.
Associate: T. Ranson
Date: 27 August 2014
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