Kovacs & Graham
[2015] FamCAFC 98
•26 May 2015
FAMILY COURT OF AUSTRALIA
| KOVACS & GRAHAM | [2015] FamCAFC 98 |
| FAMILY LAW – APPEAL – CONTRAVENTION – Where the father appealed against a decision to adjourn the hearing of his contravention applications until the trial of the substantive proceedings – Although the order was interlocutory, leave to appeal may not be required since the order was arguably “in relation to a child welfare matter” – The primary judge was correct in concluding that another judge was seized of the matter – The order did not prevent the contravention applications being heard earlier at the discretion of the other judge – The primary judge did not err in observing that the contravention applications may not have utility after final parenting orders are made – The father may be able to resume seeing the children through other mechanisms – The father was not denied procedural fairness – Appeal dismissed. |
| Family Law Act 1975 (Cth) – s 70NEB(1)(c), s 94(2A) Family Law Rules 2004 (Cth) – r 22.22(2)(a) |
| Caballes & Tallant (2014) FLC 93-596 Kettle & Baker [2014] FamCAFC 85 |
| APPELLANT: | Mr Kovacs |
| RESPONDENT: | Ms Graham |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| APPEAL NUMBER: | NA | 60 | of | 2014 |
| DATE DELIVERED: | 26 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray & Forrest JJ |
| HEARING DATE: | 26 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 September 2014 |
| LOWER COURT MNC: | [2014] FamCA 829 |
REPRESENTATION
| THE APPELLANT: | In person, by video link from Cairns |
| THE RESPONDENT: | No appearance |
THE INDPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The appeal be dismissed.
There be no order as to costs.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 60 of 2014
File Number: CSC 762 of 2010
| Mr Kovacs |
Appellant
And
| Ms Graham |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Thackray J
For the sake of convenience, in these reasons, I will refer to the appellant, Mr Kovacs, and the respondent, Ms Graham, as “the father” and “the mother” respectively.
The appeal
By his amended Notice of Appeal filed on 24 February 2015, the father seeks leave to appeal against an order made by the Honourable Justice Kent on 29 September 2014. The order was made in contravention proceedings in which the father alleged that the mother had breached earlier court orders.
The terms of the order made by Kent J are most important. It provided for the contravention proceedings to be adjourned for hearing before the Honourable Justice Tree on “a date to be fixed to be heard and determined with the final trial of these proceedings, subject to any further Order of the Honourable Justice Tree” (emphasis added).
The mother and the Independent Children’s Lawyer have elected not to participate in the appeal, but the father must nevertheless satisfy the Full Court that Kent J erred in the exercise of his discretion in granting the adjournment.
Background
The substantive parenting proceedings between the father and the mother concerned the three children of their relationship, who were aged between four and nine years at the time the matter came before Kent J.
In September and October 2013, Tree J presided at a trial of the parenting proceedings. The trial was adjourned, part heard, but on the basis of interim orders being made by consent on 2 October 2013 for the children to live with the mother and spend regular time with the father (“the consent orders”).
The adjournment came about as a result of expert evidence recommending that there be counselling for six months prior to the final determination. There was some delay in the counselling but, by the time the matter came before Kent J on 29 September 2014, his Honour understood it was “expected that the counselling regime should be completed … in about February [2015]”.
Kent J apparently had three different contravention applications listed before him. The first, filed on 2 April 2013, assumes little importance in the appeal, as it is said to deal primarily with property matters (and a copy of it was not even included in the appeal books). The other two applications, filed on 20 December 2013 and 8 July 2014, alleged breaches of the consent orders.
Apart from the fact that they were given return dates of 10 February 2014 and 28 July 2014, there is nothing in the appeal books to indicate what occurred to the contravention applications prior to them being listed for mention before Kent J on 1 August 2014. There is also nothing in the appeal books to indicate what happened on 1 August 2014. I can only presume that they were adjourned for mention before Kent J on 29 September 2014.
We were informed by the father today that Tree J had earlier determined that it was not appropriate for him to hear the contravention applications because he was the trial judge; but we cannot be sure that is what actually occurred, and the transcript of the hearing before Kent J on 29 September 2014 certainly does not indicate that his Honour was so informed.
On 20 August 2014, the mother filed an Application in a Case seeking that the consent orders providing for the father to spend time with the children be set aside or suspended. Kent J understood that this application arose from an incident earlier in August 2014.
On 27 August 2014, Tree J suspended the father’s time with the children, pending the father filing a medical certificate confirming that he was able to care for the children. On 12 September 2014, Tree J reinstated the father’s time with the children. His Honour made a notation on his order that the resumption of the trial should await the completion of the counselling process.
On 19 September 2014, the father filed a response to the mother’s Application in a Case, in which he sought an order on an interim basis that the children live with him and spend fortnightly time with the mother.
On 22 September 2014, the father filed an application for a recovery order seeking that the children be delivered up to him.
The application for a recovery order was listed before Tree J on 24 September 2014. His Honour then adjourned the application to the Cairns sittings in the fortnight commencing 13 October 2014. It is not in doubt that it was expected that Tree J would preside at that hearing (transcript, 29 September 2014, p 2).
When the contravention proceedings came back before Kent J (by way of a telephone link) on 29 September 2014, his Honour explained why he considered it necessary for the proceedings to be dealt with together with the substantive proceedings. The father opposed this course, but it was supported by the Independent Children’s Lawyer, who submitted that the contravention issues “were intrinsically bound with the issues that are to be determined at the final hearing”. The Independent Children’s Lawyer also advised Kent J that she would be submitting to Tree J that the matter be relisted for trial in February 2015 (transcript, 29 September 2014, p 5).
Kent J then made the order which is the subject of this appeal.
The reasons of Kent J
Taking a broad overview of the evidence, Kent J found that it was clear on the material before him, including the most recent Reasons for Judgment of Tree J, that “the same issues surrounding the dispute currently are those which are part of the substantive parenting issues that are before Tree J in the trial of the parenting proceedings” (at [9]).
His Honour went on to say:
10.In short, the mother maintains a case, it seems, that the father is unable to care for the children or that the children are at some risk in terms of their safety in the father’s care. For his part the father contends that the allegations the mother makes are fabricated, that what she says are the views of the children are not their true views and that there is no risk to the children, and that they are happy, when in his care. These are precisely the issues that have been agitated in the parenting proceedings to date and will be further agitated in the parenting proceedings to the conclusion of the trial, albeit that there may be some further events that give some substance to the allegations of each of the parents on either side.
His Honour found at [11] that it was not possible, nor in the best interests of the children, for there to be a hearing of the contravention applications separate from the substantive proceedings. Relying on views he had expressed as a member of the Full Court in Caballes & Tallant (2014) FLC 93-596, his Honour explained that contravention proceedings in parenting cases are now “child related proceedings” within the meaning of the Family Law Act 1975 (Cth) (“the Act”). Although Kent J was in dissent in the outcome in Caballes & Tallant, nothing said by the majority indicates disagreement with his Honour’s interpretation of the law.
His Honour drew particular attention to s 70NEB(1)(c) of the Act, which provides that the court may adjourn “[contravention] proceedings to allow either or both of the parties to the primary order to apply for a parenting order … that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order”. In this context, his Honour drew attention to the fact that both parties had already applied for a variation and/or discharge of the consent orders.
His Honour then referred to s 65D(3), which provides that if a parenting order is made as a result of an application made following an adjournment under s 70NEB(1)(c), then “the court may, if it thinks it is appropriate to do so, dismiss the [contravention] proceedings”.
In explaining the meaning and policy of the Act, his Honour said:
19.In other words, what the Act seeks to do is to elevate the children’s best interests as the primary consideration. Rather than having contravention applications which in usual civil proceedings involve penalty of a person in contravention, the Act elevates best interests in the context of parenting orders to ensure that the Court reaches orders which are in the best interests of the children. To achieve that outcome in circumstances where the primary parenting order may be sought to be varied or discharged by a parent, that process is elevated over the contravention proceedings themselves, which may ultimately be dismissed in light of the determination of parenting orders.
20.In the context of this case it means that what is of primary importance is the determination of final parenting orders in the interests of these children. It may well be that on a determination of final parenting orders the contravention applications might be dismissed on the basis that they are no longer of any utility. For example, if the father were to succeed in his applications he makes for final parenting orders there may well be little point in entertaining a contravention application of a previous order that no longer has any practical utility. Conversely, the issues that arise on the parenting proceedings, if, for example, the mother makes out a case that there is any kind of risk may limit what the Court could do my way of any remedy for any technical breach or contravention of a previous order.
His Honour went on to observe that Tree J would:
21. … soon hear the matter again in relation to the father’s Application in a Case for a recovery order and has listed these proceedings to be heard in the Cairns sittings commencing in October 2014. Whether for the same reasons I have outlined his Honour adjourns that application to the trial is of course a matter entirely for his Honour.
His Honour concluded by giving these reasons for granting the adjournment:
22.In my judgment, it is consistent with the principles expressed in Division 12A and the sections to which I have referred for the father’s contravention applications to be adjourned to be considered with the trial of the substantive parenting proceedings in this case. Tree J is seized of the matter in terms of the recovery order application that he will hear in October 2014 and if it be the case that interim orders ought be made pending the final hearing and determination of the parenting proceedings in February 2015, Tree J, given his involvement in the matter in the manners described, is in a far superior [position] to another judge to hear and determine any interim application.
23.Moreover, it seems to me having regard to the scheme of the legislation to which I have referred, that it is preferable that the judge seized of the final parenting proceedings, as Tree J is, hears and determines any interim applications pending the final outcome of those parenting orders applications.
Leave to appeal
The father’s Notice of Appeal and Summary of Argument were both drafted on the basis that leave to appeal was required, given that Kent J’s order was interlocutory. However, I am not convinced that leave is needed, since it is at least arguable that the order was “in relation to a child welfare matter” (see reg 15A of the Family Law Regulations 1984 (Cth)).
I therefore propose to adopt the same approach as was taken in similar circumstances in Kettle & Baker [2014] FamCAFC 85; namely, in the interests of simplicity, I would proceed on the basis that leave is not required.
Grounds of appeal
The amended Notice of Appeal contained eight grounds; however, the Summary of Argument did not seek to address them separately as required by r 22.22(2)(a) of the Family Law Rules 2004 (Cth).
In any event, I do not propose to address each of the grounds individually and, with the concurrence of the other members of the bench, will instead give my reasons in short form, as the Court is entitled to do pursuant to s 94(2A) of the Act when an appeal does not raise any question of general principle.
As appears from the chronology I have stated earlier, the substantive proceedings were part heard before Tree J at the time the contravention applications were first listed for mention before Kent J. After this first mention, in the space of just a few weeks, the matter had been back before Tree J on no less than three occasions. The matter was also listed back before Tree J for the hearing of a recovery order application a few weeks after the date on which the adjournment order was ultimately made by Kent J.
In these circumstances, I consider that Kent J was undoubtedly correct in concluding that Tree J was “seized of the matter” and was in a “far superior [position]” to any other judge to determine any interim application concerning the three children. Importantly, while Kent J was of the view that the contravention applications would most appropriately be dealt with at the trial of the substantive parenting proceedings, his Honour’s order clearly left open the possibility of the father persuading Tree J at the next hearing, just a few weeks later, that the contravention application should be heard earlier.
I am also not persuaded that Kent J erred in concluding that the issues that were to be agitated in the contravention proceedings were the same as the issues to be agitated in the substantive parenting proceedings. Furthermore, his Honour was right to draw attention to the fact that the legislation itself contemplates, firstly, the adjournment of contravention proceedings to allow an application to be made for discharge or variation of the parenting order; and, secondly, for the contravention proceedings to be dismissed in the event that an order is ultimately made for discharge or variation of the parenting order.
I am, of course, mindful of the fact that the consent orders had been made fairly recently. I also do not doubt the father’s assertion that the alleged breach may have been detrimental to the best interests of the children. However, the order for the adjournment of the contravention proceedings must be seen in context of the fact that the father had on foot an application for a recovery order. In my view, the relief that could be granted on that application would likely be far more effective in ensuring the resumption of the father’s time with the children than a successful contravention application. Put another way, the adjournment of the contravention application did not necessarily mean that the father would have to wait until trial to resume having time with the children.
In advancing his submissions, the father relied on the fact that the mother had not filed any material in response to his contravention applications. However, as Kent J pointed out to the father, and we again pointed out today, the mother was under no obligation to file such a response. The fact that she enjoys this advantage in contravention proceedings further demonstrates why other options available to the father, such as the recovery order, were likely to be more effective in securing time with the children.
In concluding that there is no merit in the father’s appeal, I have not overlooked his argument that he was not afforded procedural fairness by Kent J. However, I have carefully read the entire transcript and find nothing in it to suggest that the father was denied procedural fairness. To the extent that the father may have very occasionally been interrupted in the course of his submissions, this occurred only in circumstances where Kent J was attempting to explain relevant factors to assist the father in understanding why it might be more appropriate for the matter to be referred back to Tree J.
I would also reject the father’s submission that Kent J appeared to have failed to take into account the difficulty the father has with the English language. On my reading of the transcript, the father explained his position clearly at the hearing. His Honour would have been in no doubt that the father strongly opposed the proceedings being adjourned. His Honour’s disagreement with the father’s proposal did not come from any lack of understanding of his argument, but rather because he disagreed with it.
The outcome and costs
As I find no merit in the appeal, I propose that it be dismissed.
As the mother and the Independent Children’s Lawyer elected not to participate in the appeal, no costs issues arise.
Before concluding these reasons, I should observe that the father has today expressed concern that Tree J is not hearing, and may never hear, the contravention applications. Again, it is not possible for us to determine what may be happening in the proceedings at first instance; however, I have no reason to doubt that Tree J will deal with the contravention applications as Kent J anticipated. Furthermore, given the long delay in final resolution of the proceedings, there is no reason to consider that Tree J would not grant appropriate coercive interim orders to ensure the father can see all three children, if such orders were considered to be in their best interests.
Forrest J
I agree that the orders proposed by Justice Thackray should be made for the reasons provided by his Honour.
May J
I agree with the reasons given by Justice Thackray and the orders will be as follows:
(1)The appeal be dismissed.
(2)There be no order as to costs.
I certify that the preceding fourty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Forrest JJ) delivered on 26 May 2015.
Associate:
Date: 26 May 2015
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