Kovac & Kovac

Case [2024] FedCFamC1A 66

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 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Kovac & Kovac [2024] FedCFamC1A 66
Case
[2024] FedCFamC1A 66
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CaseChat Overview and Summary

In the case of Kovac & Kovac, Ms. Kovac, the mother, appealed final parenting orders that imposed a no-time regime for her interaction with her children. The appeal was heard by Tree J in the Federal Circuit and Family Court of Australia, Appellate Division. The primary legal issue was whether the primary judge's reasons for imposing the no-time regime were adequate. The mother argued that the reasons did not adequately explain why other parenting regimes were not considered, nor why the no-time order was deemed the only reasonable outcome. Both the father and the Independent Children's Lawyer conceded the appeal on these grounds.

The court found that the primary judge erred in not providing sufficient reasons for the no-time regime. The court noted that the reasons did not disclose why other parenting arrangements were not workable or why the no-time order was the only reasonable solution. Consequently, the court allowed the appeal in part, setting aside certain orders and remitting the matter for a partial rehearing before another judge. The court also granted costs certificates to all parties involved, recognizing the appeal's success on a legal question.

The final orders included dismissing the father's application for further evidence, allowing the appeal in part, setting aside specific orders, and varying others to allow for communication between the mother and the children regarding their welfare. The matter was remitted for a partial rehearing concerning the children's time and communication with the mother. The court also noted that certain findings regarding the mother's risk to the children were not being challenged in the rehearing.

Orders

Orders of the court

NAA 357 of 2023

BRC 10294 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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