Kovac & Kovac
[2024] FedCFamC1A 66
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kovac & Kovac [2024] FedCFamC1A 66
Appeal from: Kovac & Kovac [2023] FedCFamC2F 1607 Appeal number: NAA 357 of 2023 File number: BRC 10294 of 2018 Judgment of: TREE J Date of judgment: 24 April 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the mother appeals final parenting orders that imposed a no-time regime – Inadequacy of reasons – Where the reasons of the primary judge do not disclose why no other regime was workable, nor why a no-time order was the only reasonable outcome – Where the respondent and the Independent Children’s Lawyer conceded the appeal – Error identified – Where it is unnecessary to consider the other grounds – Appeal allowed in part – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bhatnagar & Riju [2018] FamCAFC 441
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Blinko & Blinko [2015] FamCAFC 146
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 30 Date of hearing: 23 April 2024 Place: Cairns (via video link) Counsel for the Appellant: Mr Baston Solicitor for the Appellant: Keane Legal Counsel for the Respondent: Mr Drysdale SC with Mr Jeffrey Solicitor for the Respondent: Bilic Law Counsel for the Independent Children's Lawyer: Mr Cameron Solicitor for the Independent Children's Lawyer: Kelly Lawyers ORDERS
NAA 357 of 2023
BRC 10294 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS KOVAC
Appellant
AND: MR KOVAC
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
23 APRIL 2024
ON 23 APRIL 2024 BY CONSENT, IT WAS ORDERED THAT:
1.The Application in an Appeal filed on 22 March 2024 is dismissed.
2.The appeal is allowed in part.
3.Orders 4 and 5 made by the primary judge on 12 December 2023 are set aside.
4.Until further order, Order 7(a) made by the primary judge on 12 December 2023 be varied and otherwise amended by:
(a)inserting after the words “contacting the father” the words “save for any communication as to when the children are to spend time with and or communicate with the mother and the welfare of the children whilst spending time with the mother”;
(b)deleting the words “, the children” and the words “except as allowed in order 6 above”.
5.The matter be remitted for partial rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge in relation to the issue of whether and how the children will spend time and communicate with the appellant mother.
6.Until further order, the children are to spend time with and or communicate with the appellant mother as agreed between the parties.
7.As between the appellant mother, the respondent father and the Independent Children’s Lawyer, there be no order as to costs.
ON 23 APRIL 2024, THE COURT FURTHER ORDERED THAT:
8.The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
9.The Court grants to the respondent father a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.
10.The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children's Lawyer in respect of the costs incurred by her in relation to the appeal and the rehearing.
11.Both parties and the Independent Children's Lawyer are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of their costs incurred in the rehearing.
ON 23 APRIL 2024 THE COURT NOTED THAT:
A.That the primary judge’s orders, insofar as they relate to the children living with the respondent father and the respondent father having sole parental responsibility for the children are not being challenged by the appellant mother in the rehearing.
B.That the findings as to the appellant mother posing an unacceptable risk to the children are not challenged by her in the rehearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kovac & Kovac has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 12 December 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders affording Mr Kovac (“the father”) sole parental responsibility in relation to the parties’ two children, X, aged 9 and Y, aged 6 (“the children”). Further, the orders provided that the children live with the father and neither spend time nor communicate with Ms Kovac (“the mother”) who was only permitted to send the children cards, gifts and letters on their birthdays, at Christmas and at Easter. It is from those orders the mother appeals.
On the morning of the appeal, the father and the Independent Children's Lawyer (“the ICL”) conceded Ground 6 of the appeal and provided consent to the Court. Notwithstanding that consent, the Court nonetheless needs to be satisfied of relevant error by the primary judge (Bhatnagar & Riju [2018] FamCAFC 441).
I am satisfied that the primary judge erred, such that, as the parties propose, the appeal should be allowed in part. On 23 April 2024 orders were made to that effect with reasons reserved. These are those reasons.
BACKGROUND
The father is 46 years of age and the mother 44. They commenced their relationship in 2004, and married in 2006. Final separation occurred in 2018, and parenting proceedings were commenced by the father in September 2018. Since then the parties have been litigating about the appropriate parenting arrangements for the children.
Initially interim parenting orders were made for the children to live with the mother and spend time during the day with the father, although that later progressed to overnight time.
Ultimately the matter came on for trial in August 2020, at which time final consent orders were made which provided for the parties to equally share responsibility for the children, who would primarily live with the mother but spend time with the father, culminating in five nights per fortnight.
However, things did not proceed smoothly thereafter, and the father again commenced parenting proceedings in January 2022. It was those proceedings which after a five day trial, led to the 12 December 2023 orders.
THE PRIMARY JUDGE’S REASONS
The primary judge’s reasons initially focussed upon a long history of the mother, seemingly from 12 April 2021, cataloguing her complaints of abuse of the children by the father, and from 2 June 2021, of sexual abuse of them by him. Her complaints thereafter extended to sexual abuse by the paternal grandparents as well.
His Honour noted that investigations by the police and the Department of Child Safety (“the Department”) ensued, although no direct intervention resulted and ultimately no risk of harm from the father was found to be substantiated. However, the mother continued to fixate on the risk of sexual abuse of the children by the father, which led to the Department acting upon a notification that, by virtue of that fixation, the mother posed a risk of harm to the children, which was found to be substantiated. The Department then intervened and put the children into the father’s care, with them only spending limited time with the mother thereafter.
The primary judge then traversed the considerable body of evidence which detailed occasions when the mother had urged the children to make disclosures of abuse by the father. These included occasions after the children went into the father’s primary care. Further, after the children were removed from her primary care, the mother continued to press her allegations against the father.
The primary judge then discussed the evidence of the children’s anxiety, which they attributed to their reaction to the mother and their interactions with her, including X disclosing that the mother had been pulling Y’s penis.
His Honour next traversed the relevant expert evidence, including from the family report writer and a psychiatrist, the latter opining that the mother had a personality disorder, which could be amenable to psychotherapy, although it is “a very difficult and slow process” (at [160]).
The primary judge then embarked upon a traverse of the relevant primary and additional considerations enumerated in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). At [172]–[173] the primary judge said:
172. My conclusion as to these primary considerations are in summary:-
(a)It is important to [X] and [Y] that they have a meaningful relationship with both their mother and father, and
(b)There is a great need to protect them from being exposed to the risk of family violence, harm or abuse.
173. My reasons for reaching those conclusions are as follows:
(a)It is clear that the children love both their parents and wish to have them in their lives.
(b)There is an overwhelming body of evidence that the mother is an extreme threat to the emotional and psychological well-being of both children.
As to the additional considerations the primary judge said this in relation to the additional consideration enumerated in s 60CC(3)(d) of the Act:
(d)This consideration is the most important consideration. If the children were denied a relationship with their mother, the consequences to them could be devastating. But if they continue with the status quo, the consequences would also be devastating, perhaps even more so.
Later in relation to the additional consideration listed in s 60CC(3)(l) of the Act the primary judge said:
(l)I am very mindful of the fact that, if I were to find that the mother does not present as an unacceptable risk to the children, the mother may eventually revert to her previous behaviour which will definitely lead to further litigation.
His Honour determined that the presumption of equal shared parental responsibility did not apply (at [176]). As to the children’s living arrangements, the crux of the primary judge’s reasoning appears to be that, despite the children wishing to continue with the then current regime (at [188]) he was not persuaded that the mother’s abusive behaviour would cease (at [196]).
At [197]–[198] the primary judge said:
197.As the children grow up, they will have concerns about their emotions, their security, their identity, and their place in the world. This is normal and it will be an evolving process mixed with the usual social and adolescent stressors. If the mother were left unchecked (as is her proposal), I fear that this would be an opportunity for her to find new ways to undermine their relationship with the father. This would have the consequence that the children will suffer severe emotional and psychological abuse which will not be able to be dealt with (as it has so far) by their remarkable resilience and stoicism.
198.There are simply no conditions that I could impose that would deter the mother into not behaving in this manner. There are simply no conditions that I could impose that would keep the children safe from the manipulations of the mother. What has occurred over the last three years must stop. The only way it will stop is for the Court to make an order which will ensure that it stops.
His Honour concluded:
199.It gives me absolutely no pleasure to make the order that I feel I must make. I understand that I will be ceasing the relationship between a mother and her children. That is not something that I do lightly. I understand that the consequences may be devastating to the children, especially as they have voiced, very strongly, their opposition to change.
200.However, I must balance out the fact that the devastation that the children will suffer, if I do not make such an order, is that they will be emotionally and psychologically harmed by having a mother constantly chipping away at the children by telling them that their father is, not only doing harm to them, but means to do further harm to them. The children may be quite stoic at this point in time, but if this behaviour continued for another 12 years, the results would be catastrophic. Those concerns simply outweigh the “devastation” that the children would have from the ceasing of their relationship with her mother.
GROUND 6
Ground 6 is the ground conceded by the father and the ICL. It contends:
6.In making an order that the children spend no time with the mother the trial judge failed to give any or any adequate his reasons as to why making an such an order would be in the best interests of the children given the evidence of the parents, the staff from the children’s current school, the family consultant and expert psychiatrist, the mother’s treating psychiatrist.
(As per the original)
The obligation to provide reasons is well established and uncontroversial. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
(Emphasis added)
The mother dealt with this ground in conjunction with Grounds 3, 4 and 5. In her Summary of Argument she simply said this about the four grounds:
27.Removing the children from spending time with their mother is a course of last resort. The trial judge did not effectively contemplate what steps could or ought to be undertaken to ameliorate, mitigate the risk that could enable the children to continue a relationship with their mother. The trial judge did not objectively assess whether there was an unacceptable risk nor consider what was appropriate to any such degree of risk.
28.The Appellant contends that had the trial judge considered the evidence the subject of Grounds 3 to 6 order should not have been made to cease the children spending time with their mother.
(Footnotes omitted) (As per the original)
In the ICL’s Summary of Argument, it was contended that several Full Court authorities identified “no-time” orders are orders of last resort, and it is therefore incumbent upon a court pronouncing them to explain why no other regime is workable (Blinko & Blinko [2015] FamCAFC 146). Further, it was submitted that a finding of unacceptable risk is only the start, not the end of the evaluative process, and that such a finding necessarily invokes a consideration of the means which might – but also might not – be adequate to sufficiently mitigate the risk to an acceptable level (Bielen & Kozma (2022) FLC 94-123 at [51]–[55]).
Particularly, the ICL argued:
35.In Blinko, the Full Court (May, Murphy & Tree JJ) made it clear that in assessing risk, the Court must also consider what possible measures are open to ameliorate that risk. Regarding that issue, their Honours said (at [27]-[28]): “a consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because ‘[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’: see Hon John Fogarty AM ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 at 261.” Their Honours then continued (at [29]-[30]):
“29.As Brown J said in Mazorski v Albright (2008) 37 Fam LR 518 at 526, ‘the word ‘meaningful’ is a qualitative adjective, not a strictly quantitative one’. Similarly, in McCall v Clark (2009) 41 Fam LR 483 at 509, this court suggested that the court should ‘consider and weight the evidence at the date of the hearing to determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents …
30.Accordingly, where the court makes no orders for time or communication because it is not persuaded that safeguarding conditions would sufficiently ameliorate the risk, again it should clearly explain the reasons for that conclusion. Looming large amongst the reasons for doing so, is because such orders will necessarily wholly prohibit the child, during their childhood and adolescence, from ever having any form of relationship with the non- resident parent, again, a potentially grave consequence. Such an outcome needs to be arrived at only after a careful evaluation of all of the other options which might work to enable the child to have the benefit of some kind of relationship with the on-resident parent, as indicated by the objects and principles of Part VI of the Act. Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC (s)(b) – something entirely consistent with the approach of the courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of considerations, and all the more so when what is at stake is the potential for a child to never know their parent.”
(Emphasis added)
One asks, and not rhetorically, where is the primary judge’s “careful evaluation” of the options available to a “no-time” regime, or the clear explanation for why the conclusion that a “no-time” regime was the only acceptable outcome? At best, it could only be in [197] and [198] which I have recited earlier. However, what “conditions” did his Honour have in mind in reaching the several conclusions articulated in [198]? Why would professional supervision not “deter the mother’ or “keep the children safe”? Why must the prohibition of any contact be until the children turn 18, and more, rather than the blanket prohibition imposed on any time or communication, why could the father not be trusted with the responsibility of determining – from time to time, as an incident of his general parental responsibility – that the children should spend time or communicate with the mother?
There is no answer to those sorts of questions; one is left none the wiser as to what options his Honour had in mind when considering ameliorative conditions, nor why they were not sufficiently mitigatory.
Ground 6 succeeds, and the parties were right to concede that.
THE APPLICATION IN AN APPEAL
On 22 March 2024 the father filed an Application in an Appeal seeking to adduce further evidence in the appeal, but with his concession of the appeal now rendering his application otiose, he acceded to its dismissal.
CONCLUSION
With the success of Ground 6 there is no obligation to consider the remaining grounds (Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8]).
As the parties’ consent orders recognised, the appeal must be allowed in part, and the aspects of the proceedings infected by the primary judge’s lack of reasoning remitted for rehearing before another judge. Otherwise, I am satisfied that the consent interim variations of the orders are in the children’s best interests.
COSTS
The appeal has succeeded on a question of law to which no party contributed. In those circumstances, as the parties agreed, there should be no orders as to costs, but there should be certificates to all parties for the appeal and the rehearing.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 24 April 2024
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