KOVACS & GRAHAM
[2017] FamCAFC 173
•23 August 2017
FAMILY COURT OF AUSTRALIA
| KOVACS & GRAHAM | [2017] FamCAFC 173 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of transcript by the Court – Whether the transcript of proceedings is necessary for the prosecution of all or in particular the appeal from final parenting orders – Where the transcript would not assist in the prosecution of the appeals – Where the provision of transcript would cause undue delay to the hearing of the appeal – Where the circumstances do not warrant the court providing the transcript at its own expense – Where there is no basis to order the Independent Children’s Lawyer to provide the transcript – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father seeks orders compelling a Crown prosecutor or a Commissioner of the Royal Commission into Institutional Responses to Child Sexual Abuse to attend the hearing of the appeal – Where the Court has no power to make such an order – Where the father seeks the discharge of the Independent Children’s Lawyer – Where it is not appropriate for the Full Court to make such an order – Where the father seeks that the Court “read” his Summary of Argument – Where the Full Court reads parties’ Summaries of Argument as a matter of course – Application dismissed. |
| Finch & Shibo (No 2) [2016] FamCAFC 108 Sampson & Hartnett (2013) FLC 93-542 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Kovacs |
| RESPONDENT: | Ms Graham |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 762 | of | 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: | 23 August 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Aldridge and 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 (via videolink from Cairns) |
| THE RESPONDENT: | In person (via videolink from Cairns) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
The Applications in an Appeal filed on 20 June 2016 and 9 August 2017 be dismissed.
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 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 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Numbers: NA 62 of 2015; NA 87 of 2015; NA 4 of 2016; NA 14 of 2016; NA 15 of 2016
File Number: CSC 762 of 2010
| Mr Kovacs |
Appellant
And
| Ms Graham |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Aldridge J
There are two Applications in an Appeal before the Court.
On 20 June 2016 Mr Kovacs (“the father”) filed an Application in an Appeal which sought the following orders:
1.The court and/or ICL shall provide and deliver copies of all transcripts lsited [sic] in appeal indexes to the application at no costs.
2.Additionally seeking orders that below crucial evidence in form of transcripts not listed in the settled appeal indexes shall be provided by the court and/or ICL to the applicant at no costs:
a)16 July 2013, 30 September 2013, 1 October 2013, 2 October 2013,15 November 2013, 3 March 2014, 26 May 2014, 12 September 2014; 20 October 2014, 2nd of February 2015 before J Tree.
b)28 July 2015, 3 November 2015 before Registrar L Boyd.
c)1 August 2014; 29 September 2014 before J Kent
d)26 May 2015 Appeal hearing before J May; J Forest & J Thackray
(As per the original)
On 9 August 2017 the father filed a further Application in an Appeal seeking the following orders:
1.Seeking orders that:
I)all missing transcript from hearings and seatings (heard by both Tree J and Registrar L. Boyd during period December 2012 and February 2016) the court shall help appelent o [sic] provide and make available to appeal pannel [sic] and to all parties. These transcripts are appellant’s evidence in chief for these appeals.
II)entire costs related with transcripts shall be waived in full and/or covered by this Honourable Court and that an appellant or any other party is excused from these costs.
III)a special leave shall be granted that Crown Prosecutor of Queensland and Independent High Rank Commissioner from Royal Commission to the Child Abuse shall be present at the appeal hearing in 23 August 2017.
IV)is allowed that appelant’s [sic] summary of argument filed on 19th of January 2017 is “read” to this court as appellant’s detailed submissions and as an extention [sic] of affidavit filed with herein application in appeal.
V)ICL is removed from this appeal process on bases that acting bias against male-fathers, promoting her personal interests above “the best interest of children”, caused deliberate delays, harmed children and have conducted severe abuse of the legal process, her professional conduct and conspiring with trail judge and with the mother laweyrs’ [sic] to harm children.
(As per the original)
It is convenient to deal with the applications together.
The applications were opposed by Ms Graham (“the mother”) and the Independent Children’s Lawyer (“the ICL”).
Transcripts
First, it is apparent from the terms of the applications themselves and from paragraph 27 of the father’s affidavit of 9 August 2017 that the transcripts the father seeks to be provided with go well beyond the hearings before Tree J that are the subject of the appeals. Those further transcripts are not relevant to the disposition of these appeals. Our task is to determine whether there was error on the part of the primary judge in the five judgments under appeal. It is not our task to undertake a general review of the proceedings since they were commenced.
Secondly, the Court is not provided with the funding to provide transcripts to litigants and does not do so save in exceptional circumstances: Sampson & Hartnett (2013) FLC 93-542 (“Sampson”) at [80] and [83]; Finch & Shibo (No 2) [2016] FamCAFC 108 at [8].
The Court in Sampson pointed to a number of matters that may be considered in determining an application for the provision of transcripts (at [16]):
·Whether the case is a financial or parenting case;
·Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
·The likely cost of the relevant transcript and whether the appellant can afford all or part of the cost of the transcript;
·The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of appeal books;
·The prima facie merits of the appeal;
·Whether the question of providing a transcript can be left to the Full Court hearing the appeal;
·Any other relevant facts or circumstances.
I accept that in parenting matters such as the present the Court might more readily provide the transcript. I accept too that the father is impecunious. He says that he has been advised by Auscript that the costs of obtaining the transcript will be $19,789.32 and that he does not have the means to pay that sum.
There are five appeals relating to five different orders made by the primary judge. It is not apparent to us how the transcript will assist in the determination of any of the appeals other than that against the final parenting orders made on 29 October 2015.
The bases for the other orders seem clear from the primary judge’s reasons and if error is to be demonstrated, that can be done by reference to those reasons and the material that was before the Court. There is no suggestion that oral evidence was given on the other occasions. There is a suggestion that the primary judge was biased, but the nature of the asserted bias is not set out in the father’s submissions other than in the form of general complaints against his Honour for not accepting the father’s contentions. It seems that no application was made for the primary judge to disqualify himself which will, of itself, make any challenge on the ground of bias difficult to establish (Vakauta v Kelly (1989) 167 CLR 568).
Turning to the transcript of the parenting proceedings that led to the orders of 29 October 2015, I have considered the Summary of Argument of the father.
The father makes a number of broad assertions, of which the following are an example (at paragraphs 4 and 5):
As a result of 48 hearings set between 20 February 2013 and 11th of February 2016 legal process has been pre-fabricated and outcome manufactured … The trial judge and ICL are solely responsible for the deliberate abuse of the process, service of prejudice, mistrial and usage of psychological tortures aiming to extortion and perversion of the course of justice.
Trail judge deliberately refused and ignored to:
…
f) dismissed him self [sic] from this matter and step down from his judicial functions when epressively [sic] bias and when pervertion [sic] of the course of justice took place, abuse of the office, when members of this family were psychologically tortured and severe detriments to heath of memebrs [sic] of this family was caused and above all by when our children were deliberately harmed and abused when process was unreasonably extended.
(As per the original)
The lack of particularity in these assertions and their very nature indicate to me that we would not be assisted to any great extent by the transcript when dealing with those challenges to the judgment. Certainly they point against the public purse paying for it.
The father’s submissions do identify some specific moments of the hearing. Some of them, however, are not relevant to the grounds of appeal (such as refusing to finish the hearing on 30 April 2015 or refusing the father an adjournment on 26 April 2015). Some of the submissions do refer to specific oral evidence but it would be relatively inexpensive for the father to obtain the relevant portions of the transcript.
Again I accept that, notwithstanding these comments, the father will be hampered to some degree in arguing his appeal without the benefit of transcript.
Whilst the merits of the appeal itself may be a relevant consideration, it is not one that I propose to undertake here given that the appeal itself is listed for hearing today.
Finally, if orders were now to be made for the provision of transcript, the appeal could not proceed today and would have to be adjourned. The next likely hearing date in that case would be early next year. In circumstances where the parenting proceedings were commenced in 2010 and where final parenting orders were made in October 2015, this is far from a desirable course. It would cause the parties further stress and anxiety and, most likely, indirectly adversely affect the children.
I consider that there is no basis upon which we could order the ICL to provide the transcript.
Taking all these matters into account, I consider that the application that the Court or the ICL provide the transcripts sought by the father should be refused.
Application for Crown Prosecutor or Commissioner to attend
The Court does not have the power to compel a Crown prosecutor or a Commissioner from the Royal Commission into Institutional Responses to Child Sexual Abuse to follow any particular course.
Application for the father’s Summary of Argument to be “read”
The Court will, as always, read and take into account the parties’ summaries of argument.
Removal of ICL
The father makes a number of wide-ranging assertions of misconduct and a lack of integrity on the part of the ICL. Each is a conclusion and the father identifies no evidence in support of them.
There is no basis for considering the removal of the ICL, even if we were of the opinion that it was appropriate for us, as an appeals bench, to hear such an application. I am not of that view. The father’s application is controversial and its determination would require the calling and testing of evidence, which is a course that cannot conveniently or properly be undertaken by an appeals bench.
It follows that I consider that both Applications in an Appeal should be dismissed.
Forrest J
I too would dismiss both of the Applications in an Appeal for the reasons given by Aldridge J, with which I agree.
Strickland J
I too would dismiss both Applications in an Appeal for the reasons given by Aldridge J.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Forrest JJ) delivered on 23 August 2017.
Legal associate:
Date: 25 August 2017
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