Graham & Kovacs (No 3) - [2015] FamCA 900

FAMILY COURT OF AUSTRALIA

GRAHAM & KOVACS (NO 3)

[2015] FamCA 900

FAMILY LAW – CHILDREN – TRIAL – No appearance by father on last day of trial – trial continued in father’s absence.

FAMILY LAW – CHILDREN – INTERIM ORDER – that the father’s time with the children be suspended – that the father provide medical evidence he is fit to have the children in his care – where the Independent Children’s Lawyer is to determine the adequacy of the medical certificate.

FAMILY LAW – CHILDREN – CONTRAVENTION OF ORDERS – no appearance by applicant – applications dismissed.

Family Law Act 1975 (Cth)

Graham & Kovacs [2014] FamCA 702

Graham & Kovacs [2014] FamCA 802

Graham v Kovacs [2014] FamCA 829
Buljubasic & Buljubasic (1999) FLC 92-865

APPLICANT:

Ms Graham

RESPONDENT:

Mr Kovacs

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

762

2010

DATE DELIVERED:

21 October 2015

PLACE DELIVERED:

Townsville

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Wilson
SOLICITORS FOR THE APPLICANT:	Sandra Sinclair

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Susan Gray

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graham & Kovacs (No 3) 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: TVC762/2010

MS GRAHAM

Applicant

And

MR KOVACS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 13 August 2015, I did three things in this matter. Firstly I resolved to continue the trial of both children’s and property proceedings in the absence of the father. Secondly, at the conclusion of the trial I made interim orders suspending the time which the father would otherwise have spent with two of the three children the subject of these proceedings, pursuant to interim consent orders made 2 October 2013, albeit setting out a process which could see that suspension dissolved. Thirdly, I further ordered that all outstanding contravention applications be dismissed, but otherwise reserved my judgment in the proceedings.
These are my reasons for so proceeding and ordering.

DECISION TO CONTINUE TRIAL IN ABSENCE OF FATHER

These proceedings have had a highly complex history since their commencement by the mother in December 2010. It is unnecessary for the purposes of these reasons to traverse that history in detail, but suffice to say that the trial of the matter first commenced before me on 30 September 2013, and adjourned on 2 October, with interim consent orders being made on that day. Under those orders the father was to spend alternate weekend time with the three children the subject of these proceedings, together with holiday time on special days.
A key component of those interim orders was the requirement that the parties attend psycho-educational counselling with a view to improving their interaction generally, and particularly their communication. Unfortunately as it transpired, that counselling was…

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 (No 3)

Details

AGLC: Graham & Kovacs (No 3) [2015] FamCA 900
Case: [2015] FamCA 900
Decision Date: 21 October 2015

CaseChat Overview and Summary

In *Graham & Kovacs (No 3)*, the Federal Circuit and Family Court of Australia considered applications concerning children. The father did not appear on the final day of the trial, and the proceedings continued in his absence.

The court was required to determine, amongst other matters, the adequacy of medical evidence provided by the father regarding his fitness to care for the children, and whether an interim order suspending the father's time with the children should be made. The court also considered applications for contravention of orders where the applicant failed to appear.

Her Honour Tree J reasoned that the father's absence from the final day of the trial meant the court could not be satisfied that he was fit to have the children in his care, particularly in light of the Independent Children's Lawyer's role in assessing the adequacy of medical certificates. Consequently, the interim order suspending the father's time with the children was maintained, and the father was required to provide further medical evidence. Applications for contravention of orders were dismissed due to the applicant's non-appearance.

Orders