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 | of | 2008 |
| APPEAL NUMBER: | EAA | 129 | of | 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…
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- Case
- [2011] FamCAFC 86
- Decision Date
CaseChat Overview and Summary
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
1.
That the appeal be dismissed.
2.
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
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
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