Graham & Kovacs (No 3)
[2015] FamCA 900
•21 October 2015
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 |
| 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: | 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 a wholesale failure. Since 2 October 2013, not only have the parties continued in their hostility and conflict, but at least to my observation, it has become worse.
That was the state of play when the trial resumed before me on 27 April 2015, and ran for a further five days. Unfortunately that time still did not see the trial finish, and it was listed to resume before me on 13 August 2015.
On 11 August 2015 the father filed – albeit not supported by any application or affidavit – a doctor’s certificate certifying that he was unfit to attend the resumed trial. The relevant certificate was laudable only for its brevity. Its entire content provided:
I hereby certify that on 11 August 2015 I examined [the father] who in my opinion is suffering from a medical condition and will be unfit for court attendance for the next week and I suggest a review in a month.
Registry staff advised the father that the filing of the certificate was insufficient to adjourn the trial and that he would need to file an application for an adjournment supported by appropriate affidavit material. Although he did file that application, neither it nor the affidavit in support were served on the other parties, and in any event, the affidavit in support only simply annexed the medical certificate. Notwithstanding the father was aware that the application was returnable on the first day of the resumed trial, he did not appear to press the application, whether in person or by any legal representative.
In Buljubasic & Buljubasic (1999) FLC 92-865 the Full Court discussed the situation where a litigant seeks to seek an adjournment by direct communication with the court, or fails to appear at the listed time for the resumed trial to seek an adjournment, and said:
It is ordinarily improper for litigants to seek to communicate with the trial judge by sending a facsimile or other communication to the Court or the Registrar. A litigant seeking an adjournment or extension of time in respect of a matter listed for hearing must either appear in court on the listed date or send a representative to make proper application for relief.
Here, not only did the father not appear, but the application for the adjournment and supporting materials were not served. Further, the doctor’s certification of unfitness is wholly devoid of any detail upon which a proper exercise of the discretion to adjourn could possibly be made.
I therefore determined on 13 August 2015 to press on with the trial notwithstanding the father’s absence. In so doing, I was particularly mindful that the matter had already consumed considerable court time and resources, in a Registry where there is very limited judicial time to hear matters, of which there are many. Further, I was cognisant of the fact that the father’s affidavits were already in evidence in the children’s proceedings, and he had cross-examined the mother, the Family Report writer and the relevant psychiatrist.
In my view, even ignoring the father’s failure to appear, the interests of justice weighed strongly in bringing these long running proceedings to finality.
SUSPENSION OF TIME
On 16 August 2014 an incident occurred at the father’s home. It is unnecessary to explain the background of that incident, but it led to the police late one evening attending the father’s home – where the father and the three children the subject of these proceedings were present – and breaking down the front door with a sledge hammer, and thereafter arresting the father, placing him in handcuffs, and roughly dragging him outside.
The father became extremely distressed in consequence of the events of that evening.
On 20 August 2014 the mother filed an Application in a Case seeking the suspension of the 2 October 2013 orders insofar as they permitted the father to spend time with the children. The father then filed a medical certificate from his general medical practitioner which identified that, in the doctor’s opinion, the father was unfit to attend court between 25 August and 6 September 2014. However on 27 August, when the mother’s application came on for hearing, in fact the father did appear. In his submissions on that date, he conceded that he was not presently in sufficiently good health to be able to care for the children on the coming weekend, but believed that he would be in sufficient health on the following weekends, such that the children should then return to his care. However for reasons which I gave ex tempore on 27 August 2014, I determined that the father’s time with the children under the 2013 orders should be suspended, but reinstated upon him filing a medical certificate from his regular treating medical practitioner, stating that he was fit and well enough to care for the children on each alternate weekend. Upon the father filing that medical certificate, I gave him liberty to apply on short notice to discharge the suspension of time order: see Graham & Kovacs [2014] FamCA 702.
Subsequently, pursuant to that liberty to apply, the father sought reinstatement of the time that he otherwise would have spent with the children under the October 2013 orders, to which application I acceded: Graham & Kovacs [2014] FamCA 802.
However at the conclusion of the trial, counsel for the mother sought to again suspend the father’s time with the children under the 2 October 2013 orders, on the basis that if the father indeed claimed that he was sufficiently unwell as to not attend the resumed trial, the court could not be confident that the father would be able to properly provide for the children going into his care for two nights on the forthcoming weekend, or indeed thereafter. The mother sought a suspension of time and a regime of orders akin to that which I ordered on 27 August 2014. That was supported by the Independent Children's Lawyer.
I was persuaded that there was a sufficient question mark about the father’s capacity to care for the children that indeed his time should be suspended pending a further medical certificate as to his fitness to care for them being provided. Now is probably appropriate time to record that the father has an acquired brain injury sustained in 2007, in consequence of which a psychiatrist, Dr G, who assessed the father, opined that the father “has very significant residual behavioural problems associated with his brain injury.” Dr G further said that the father was “really quite insightless” as to the consequences of that injury, and on that basis thought it appropriate that the father indeed only have supervised time with the children into the foreseeable future. Whilst the 2013 orders did not require supervision, that does not reduce the force of Dr G’s other opinions.
As has been seen, in consequence of the August 2014 police episode, even the father conceded that he was psychologically so distressed that the children should not go into his care on the weekend of 30 and 31 August 2014.
Against that background, the fact that a medical practitioner is apparently of the view that the father is so unwell that he could not attend the resumed trial does raise real questions as to the present state of the father’s health. However absent specificity as to what condition the father is suffering from, and the effects of it on him, there is little material from which the court can gauge the level of risk – if any – which the father may pose given his present situation.
Given those concerns, and more particularly the lack of any information which may ameliorate them, acting protectively, I was therefore satisfied that it was in the children’s best interests that the father’s time with the children again be suspended, and further, that as a precondition to the resumption of the father spending time with the children pursuant to the 2 October 2013 orders, he should be required to again provide a certificate from his usual medical practitioner certifying that in his or her opinion the father is fit and well enough to care for the children on each alternate weekends.
In so saying, I am mindful that the medical certificate which was provided to the court and annexed to the father’s affidavit was not provided by a doctor from the father’s usual medical practice, but by another doctor from another medical centre. The reason why the father’s certificate was not from his usual medical practice is unclear, and in my view it is appropriate that the practitioner who certifies the father’s fitness should be one who has been regularly involved in the father’s treatment for some time, and not a doctor who the father may randomly choose to consult.
That then brings for consideration whether or not I should require the father to bring an application to resume time, or whether some less formal mechanism could be employed.
The parties have had an extraordinary history of litigation in this court since these proceedings commenced. It is undesirable to bring them back before the court for little more than a consideration of the adequacy of the terms of a medical certificate. I was satisfied that such scrutiny can be sufficiently undertaken by the Independent Children's Lawyer without the need for further attendance before me by the parties and the Independent Children's Lawyer. I was therefore satisfied that the father’s time with the children should be reinstated upon the Independent Children's Lawyer advising the parties that in her opinion the relevant medical certificate sufficiently complies with the following conditions:
·That the certificate be provided by a doctor from the practice which the father usually attends being “The doctors [H Street, Suburb I] in [F Town]”;
·That the certificate should state that the doctor has been provided with a copy of the medical certificate given in relation to the father by Dr J dated 11 August 2015;
·The certificate should further say that the doctor in question has taken a history from the father as to the circumstances which prevailed such that the father sought the certificate from Dr J;
·The certificate should further say that to the extent that the doctor providing the certificate requires it, he or she has been authorised by the father to speak with Dr J and/or the Medical Centre from which he practised at the time he gave the certificate; and
·The certificate should also state that the medical practitioner is of the opinion that the father is fit and well enough to care for the children on each alternate weekend.
Finally I should note that the certificate need only relate to the care of the children C and D, as the eldest child, B, has refused to spend time with the father since the events of August 2014.
It is for these reasons that I made the orders at paragraphs 1 and 2 of 13 August 2015 orders.
DISMISSAL OF CONTRAVENTIONS
The third order which I made on 13 August 2015 was an order dismissing all outstanding contravention applications. I did so consequent upon the father failing to appear – whether in person or by legal representative – to prosecute his application to adjourn the resumed trial, and him thereafter not appearing to prosecute the contravention applications. The father was well aware that the contravention applications were listed to be determined at the trial, at the very least in consequence of the order made by Kent J on 29 September 2014 to the effect that the father’s contravention applications “be adjourned before the Honourable Justice Tree to a date to be fixed to be heard and determined with the final trial of these proceedings…” That order was made consequent upon the father unsuccessfully seeking that the contravention application should be determined before the resumption of the trial: Graham v Kovacs [2014] FamCA 829.
Given that the father did not attend at the time the contravention applications were listed for determination, it was appropriate that they be dismissed, and I so ordered.
CONCLUSION
For these reasons I determined to proceed as I did on 13 August 2015, and made the orders as discussed earlier in these reasons.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 October 2015.
Associate:
Date: 21 October 2015
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