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Kovacs and Graham (No 2)

Kovacs and Graham (No 2)

Case [2017] FamCAFC 249 24 November 2017

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FAMILY COURT OF AUSTRALIA

KOVACS & GRAHAM (NO. 2)

[2017] FamCAFC 249

FAMILY LAW – APPEAL – PARENTING – Final orders – Whether the primary judge failed to take relevant matters into account – Challenges as to the weight given to the evidence – Procedural fairness – Bias – No appealable error established – Appeals dismissed.

FAMILY LAW – APPEAL – PARENTING – Interim orders – Where leave to appeal is required against certain interim orders – Where the appeals lack utility and are vexatious and oppressive – Leave to appeal refused.

Family Law Act 1975 (Cth) s 102QB
Family Law Rules 2004 (Cth) r 17.02(1)(a)

Allesch v Maunz (2000) 203 CLR 172
Barbey & Tuttle (2013) FLC 93-534
Buljubasic v Buljubasic (1999) FLC 92-865
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Graham & Kovacs (No 4) [2015] FamCA 1073
Graham & Kovacs (No 5) [2015] FamCA 1115
Graham & Kovacs [2016] FamCA 281
Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Kovacs & Graham [2015] FamCAFC 98
Kovacs & Graham [2017] FamCAFC 173
McMahon and McMahon (1976) FLC 90-128
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Talbot & Talbot (2015) FLC 93-660
Taylor v Taylor (1979) 143 CLR 1
Vakauta v Kelly (1989) 167 CLR 568
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Kovacs

RESPONDENT:

Ms Graham

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

762

2010

APPEAL NUMBERS:	NA	62	of	2015
NA	87	of	2015
NA	4	of	2016
NA	14	of	2016
NA	15	of	2016

DATE DELIVERED:

24 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Aldridge & Forrest JJ

HEARING DATE:

23 August 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT ORDERS MADE:

13 August 2015

29 October 2015
10 December 2015
3 February 2016
11 February 2016

LOWER COURT MNC:

[2015] FamCA 900
[2015] FamCA 1073
[2015] FamCA 1115
[2016] FamCA 281

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

Appeals NA 62 of 2015, NA 87 of 2015 and NA 4 of 2016 be dismissed.
The applications for leave to appeal in Appeals NA 14 of 2016 and NA 15 of 2016 be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kovacs & Graham (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules

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 Kovacs and Graham (No 2)

Details

AGLC: Kovacs and Graham (No 2) [2017] FamCAFC 249
Case: [2017] FamCAFC 249
Decision Date: 24 November 2017

CaseChat Overview and Summary

The appeals in Kovacs and Graham (No 2) involved multiple appeals concerning parenting orders made in relation to the children of the parties. The primary judge had made a number of final and interim parenting orders, which the applicants challenged on various grounds, including alleged errors in the consideration of evidence and procedural fairness. The applicants sought to appeal final and interim orders made by the primary judge in the Family Court. The applicants argued that the primary judge failed to properly consider certain evidence and had not acted fairly in the proceedings.

The court examined whether the primary judge had made any errors in the consideration of evidence or procedural fairness, and whether the applicants had established any grounds for appeal. The applicants contended that the primary judge had not adequately considered their evidence and had given insufficient weight to certain factors. They also argued that the primary judge was biased against them. The court found that no appealable error had been established in the final orders, and that the applicants had not demonstrated any grounds for appeal in relation to the interim orders. The court also found that the appeals in relation to the interim orders lacked utility and were vexatious and oppressive.

The court dismissed the appeals concerning the final orders, as no appealable error had been established. The court also dismissed the applications for leave to appeal in relation to the interim orders, finding that they lacked utility and were vexatious and oppressive. The court made no order as to costs. The appeals were dismissed, and the orders of the primary judge were upheld.

Orders

Orders of the court

Appeals NA 62 of 2015, NA 87 of 2015 and NA 4 of 2016 be dismissed.

The applications for leave to appeal in Appeals NA 14 of 2016 and NA 15 of 2016 be dismissed.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kovacs and Graham (No 2) [2017] FamCAFC 249

Most Recent Citation

Milson and Myron [2019] FamCA 69

Cases citing this decision · 2 of 2 shown

Taggart & Taggart (No 2)
[2020] FamCA 520 Para 9

…I was also mindful of the Full Court’s observations in Kovacs & Graham (No 2) :[4] [4] [2017] FamCAFC 249. 85.In Taylor v Taylor (1979) 143 CLR 1 at 15-16, Mason J said that it is “prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that e…
Milson and Myron
[2019] FamCA 69 Para 2

…I also refer to the Full Court’s observations in Kovacs & Graham (No 2) [5] : [5] [2017] FamCAFC 249. 85.In Taylor v Taylor (1979) 143 CLR 1 at 15-16, Mason J said that it is “prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each p…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

KOVACS & GRAHAM
[2017] FamCAFC 173 Para 2

…s before the primary judge. Those applications were heard and dismissed with ex tempore reasons at the outset of the appeal hearing ( Kovacs & Graham [2017] FamCAFC 173). Accordingly, we do not have the benefit of transcript from any of the days this matter was before the primary judge.…
Robinson Helicopter Co Inc v McDermott
[2016] HCA 22 Para 3

…cribed the limited circumstances in which an appeals court will interfere in such a finding in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43] as follows: … a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontroverti…
GRAHAM & KOVACS
[2016] FamCA 281 Para 2

…ion of the application on its merits. The father could seek to have the applications reinstated or simply file further applications ( Graham & Kovacs [2016] FamCA 281 at [13]). We also note that the Court may at any time vary or set aside an order made in the absence of a party: r 17.02(1)(a) of the Family Law Rule…
Graham and Kovacs (No 5)
[2015] FamCA 1115 Para 10

…east, because on 10 December 2015 the primary judge delivered succinct but thorough ex tempore reasons for refusing the stay ( Graham & Kovacs (No 5) [2015] FamCA 1115).…
Graham and Kovacs (No 4)
[2015] FamCA 1073 Para 2

…The considerations that led to those orders were helpfully summarised by the primary judge in the following passages (see Graham & Kovacs (No 4) [2015] FamCA 1073): PARENTAL RESPONSIBILITY 126.Both parties alleged that the other was domestically violent to them. The father concedes – albeit he appears to claim it wa…
Graham & Kovacs (No 3)
[2015] FamCA 900

…[2015] FamCA 900 [2015] FamCA 1073 [2015] FamCA 1115 [2016] FamCA 281…
Kovacs & Graham
[2015] FamCAFC 98 Para 4

…heard at the same time of the final hearing. As the decision of the Full Court makes clear, that was an entirely appropriate course ( Kovacs & Graham [2015] FamCAFC 98).…
McDermott v Robinson Helicopter Company Incorporated
[2014] QCA 357 Para 3

…y much a matter for a trial judge. The High Court described the limited circumstances in which an appeals court will interfere in such a finding in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43] as follows: … a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “i…
Whisprun Pty Ltd v Dixon
[2003] HCA 48 Para 4

…Further, we observe that a trial judge is not obliged to refer to every piece of evidence in a case: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]. The mere failure to refer to some evidence does not mean that it has not been considered.…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 2

…the words quoted in the submission we do not see why those words imply prejudgment on the part of his Honour: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 370.…
Allesch v Maunz
[2000] HCA 40 Para 9

…party chooses not to attend proceedings of which they were aware, then they have not been denied the opportunity to be heard, as Kirby J explained in Allesch v Maunz (2000) 203 CLR 172: 38.… Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is…
Buljubasic v Buljubasic
[1999] FamCA 474 Para 10

…lear that a trial judge has a discretion as to whether or not to proceed in the absence of a party ( McMahon and McMahon (1976) FLC 90-128 at 75,606; Buljubasic v Buljubasic (1999) FLC 92-865 at [24] and following; Barbey & Tuttle (2013) FLC 93-534 at [90] and Talbot & Talbot (2015) FLC 93-660 at [16]–[22]).…
Vakauta v Kelly
[1989] HCA 44 Para 3

…ge to disqualify himself. Although the father was not legally represented at the time, it is still difficult now to raise the matter: Vakauta v Kelly (1989) 167 CLR 568 at 572.…
Gronow v Gronow
[1979] HCA 63 Para 2

…05. Absent such an error, the weight to be given to particular facts or considerations is very much a matter for the trial judge: Gronow v Gronow (1979) 144 CLR 513 at 520.…
Taylor v Taylor
[1979] HCA 38 Para 8

…In Taylor v Taylor (1979) 143 CLR 1 at 15–16, Mason J said that it is “prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case”.…
House v R
[1936] HCA 40 Para 2

…elevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration”: House v The King (1936) 55 CLR 499 at 505. Absent such an error, the weight to be given to particular facts or considerations is very much a matter for the trial judge: Gronow v Gronow (19…
House v The King
63 WN 176 Para 2

…extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration”: House v The King (1936) 55 CLR 499 at 505. Absent such an error, the weight to be given to particular facts or considerations is very much a matter for the trial judge: Gronow v…

Legislation cited in this decision · 2

Family Law Rules 2004 (Cth)
17.02(1)(a) 3 mentions (from Para 2)
Family Law Act 1975 (Cth)
102QB 2 mentions