Tobey and Rezek and Ors - [2011] FamCAFC 86

FAMILY COURT OF AUSTRALIA

TOBEY & REZEK AND ORS

[2011] FamCAFC 86

FAMILY LAW - APPEAL – Appeal against interim orders made by a Federal Magistrate in parenting proceedings between the father, the mother and the maternal grandmother – No ground of appeal successfully made out – Whether, even if the appellant had successfully established appealable error on the part of the Federal Magistrate, the appeal should nevertheless be dismissed by reason of an absence of practical utility in allowing the father’s appeal and ordering a further interim hearing, in circumstances where the final hearing will take place in a short period of time and no interim hearing would be likely to take place before that time – Appeal dismissed.

Family Law Act 1975 (Cth) ss 60CC, 65DAA

Reece & Reece [2011] FamCAFC 24

APPELLANT:

Mr Tobey

FIRST RESPONDENT:

Ms Rezek

SECOND RESPONDENT:

Mrs F

INDEPENDENT CHILDREN’S LAWYER:

Evans Family Lawyers

FILE NUMBER:

CAC

740

2008

APPEAL NUMBER:

EAA

129

2010

DATE DELIVERED:

8 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

21 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 September 2010

LOWER COURT MNC:

[2010] FMCAfam 1466

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Amanda Tonkin

SOLICITOR FOR THE APPELLANT:

Capon Hubert

COUNSEL FOR THE FIRST RESPONDENT:

Ms Burgess

SOLICITOR FOR THE FIRST RESPONDENT:

Legal Aid ACT

SOLICITOR FOR THE SECOND RESPONDENT:

Farrar Gesini & Dunn

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Andrea Evans
Evans Family Lawyers

Orders

That the appeal be dismissed.
That the father pay the costs of the first respondent, the second respondent and the ICL as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Tobey & Rezek and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 129 of 2010
File Number: CAC 740 of 2008

Mr Tobey

Appellant

And

Ms Rezek

First Respondent/Mother

And

Mrs F

Second Respondent/Grandmother

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed 3 March 2011 Mr Tobey (“the father”) appealed against interim orders made in parenting proceedings between himself, Ms Rezek (“the mother”) and Mrs F (“the maternal grandmother”) on 9 September 2010 in the Federal Magistrates Court at Canberra.
The Orders of the learned Federal Magistrate essentially provided that the child X, born in 2005, live with the maternal grandmother and spend time with each of his parents from after school on Friday to Sunday afternoon in alternate weeks, pending a final hearing of the proceedings.
The mother resisted the appeal by the father and sought to maintain the Federal Magistrate’s orders. So did the maternal grandmother. Written submissions on behalf of the maternal grandmother were filed on 18 March 2011. For reasons which do not assume significance, the…

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.

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Details

Case: [2011] FamCAFC 86
Decision Date: 8 April 2011

CaseChat Overview and Summary

Tobey and Rezek and Ors was a case before the Family Court of Australia, involving a dispute between a father and a mother over the custody and care of their children. The father, the first respondent, appealed against a decision made by the Family Court that had determined the best interests of the children were served by remaining in the sole care of the mother, the first appellant. The second respondent and the Independent Children’s Lawyer were also parties to the appeal.

The court had to consider whether the decision made by the primary judge was correct and whether the appeal should be upheld. The issues included the weight to be given to the expert evidence provided, the impact of the children's relationship with each parent, and the overall welfare of the children. The father argued that the primary judge had erred in the way she assessed the evidence and in her conclusions about the children's best interests.

The court found that the primary judge had given appropriate consideration to all the evidence and had reached a conclusion that was reasonable and in the best interests of the children. The court held that the appeal did not disclose any error of law or significant error in the primary judge's assessment of the evidence. Consequently, the appeal was dismissed. The court also ordered the father to pay the costs of the mother, the second respondent, and the Independent Children’s Lawyer.

Orders

Orders of the court

That the appeal be dismissed.

That the father pay the costs of the first respondent, the second respondent and the ICL as agreed or assessed on a party and party basis.

Background

Background to the litigation

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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

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