Tobey and Rezek (No.2) - [2010] FMCAfam 1466

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOBEY & REZEK (No.2)

[2010] FMCAfam 1466

FAMILY LAW – Children – parenting – on-going high levels of conflict – need for supervision – need for expert report.

Family Law Act1975, ss.60B(1), 60CA, 60CC(2)(b), 60CC(3)(a), (c), (i), 60CC (3)(b)(ii), 60CC(3)(d)(ii), (e), (f), (g) & (i), (j) 60CC(4), 60CC(4A)

Goode v Goode (2007) 36 Fam LR 422
Mazorski v Albright (2008) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC ¶93-375
Vasser v Taylor-Black (2008) 37 Fam LR 256

Applicant:

MR TOBEY

Respondent:

MS REZEK

Intervener:

MS F

File Number:

CAC 740 of 2008

Judgment of:

Neville FM

Hearing date:

17 August 2010

Date of Last Submission:

17 August 2010

Delivered at:

Canberra

Delivered on:

9 September 2010

REPRESENTATION

Solicitors for the Applicant:

Applicant in Person

Solicitors for the Respondent:

Legal Aid Office (ACT)

Solicitors for the Intervener:

Watts McCray McGuiness Eley

Independent Children’s Lawyer:

Evans Family Lawyers

ORDERS

The child [X] born [in] 2005 (‘the child’) live with Mrs F.
The child spend time with the Father:
(a)From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 10^th September 2010.
(b)From after school on the last day of term 3 until 4:00pm on the middle Saturday of the school holidays (24^th September 2010 to 2^nd October 2010).
(c)Changeover be effected at school where possible, and otherwise at [M] unless otherwise agreed.
The child spend time with the Mother:
(a)From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 17^th September 2010.
(b)From 4:00pm on the middle Saturday of the term 3 school holidays until the commencement of school in term 4 (2^nd October 2010 to 11^th October 2010).
(c)Changeover be effected as agreed between the Mother and Mrs F.
The matter be set down for final hearing for 5 days commencing 18^th April 2011 at 10:00am in Canberra.

AND IT IS NOTED THAT:

A.The listed dates for trial may be subject to slight variation due to other listing requirements and judicial availability. Any such change will be notified to the parties should this occur.

IT IS NOTED that publication of this judgment under the pseudonym Tobey & Rezek (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 740 of 2008

MR TOBEY

Applicant

And

MS REZEK

Respondent

MS F

Third Party Intervener

REASONS FOR JUDGMENT

Introduction[1]

[1] This oral judgment has been revised from the transcript.

At the most recent hearing in these proceedings, Mr Tobey represented himself. Formerly, throughout these protracted proceedings he has been legally represented either by solicitors and or by experienced Counsel. Respectfully, subject to one matter that will need to be addressed at an appropriate time and in an appropriate manner, he did so without difficulty and was fulsome in the information and submissions provided to the Court.
In the course of…

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 Tobey and Rezek (No.2)

Details

AGLC: Tobey and Rezek (No.2) [2010] FMCAfam 1466
Case: [2010] FMCAfam 1466
Decision Date: 9 September 2010

CaseChat Overview and Summary

Tobey and Rezek (No.2) involved a dispute between the parents of a child regarding the child’s living arrangements. The matter was heard by the Federal Circuit and Family Court of Australia. The parents, Tobey and Rezek, were in conflict over the child’s living situation, and the court was required to decide on the best living arrangements for the child.

The primary legal issue before the court was to determine the most appropriate living arrangements for the child, considering the child’s best interests. The court had to weigh the importance of stability against the child’s need for frequent contact with both parents. The court also had to consider the potential impact of the parents' conflict on the child’s well-being. The precautionary principle was applied to avoid making significant changes to the child’s life, particularly his living situation, amidst ongoing parental conflict.

The court concluded that it was in the child’s best interests to continue living with his sister's grandmother, Mrs F, to provide a stable and conflict-free environment. The court ordered that the child should spend time with both parents, with specific arrangements for visitation and changeovers. The matter was set down for a final hearing to review the arrangements and make any necessary adjustments.

The court made orders that the child should live with Mrs F and have regular contact with both parents under supervised conditions. The specific visitation schedules were outlined, and the matter was set for a final hearing to review the arrangements. The court emphasized the importance of stability for the child while allowing for meaningful contact with both parents.

Orders

Orders of the court

The child [X] born [in] 2005 (‘the child’) live with Mrs F.

The child spend time with the Father:

(a) From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 10th September 2010.

(b) From after school on the last day of term 3 until 4:00pm on the middle Saturday of the school holidays (24th September 2010 to 2nd October 2010).

The child spend time with the Mother:

(a) From after school on Friday until 4:00pm Sunday each alternate weekend commencing on Friday 17th September 2010.

(b) From 4:00pm on the middle Saturday of the term 3 school holidays until the commencement of school in term 4 (2nd October 2010 to 11th October 2010).

The matter be set down for final hearing for 5 days commencing 18th April 2011 at 10:00am in Canberra.

AND IT IS NOTED THAT:

A. The listed dates for trial may be subject to slight variation due to other listing requirements and judicial availability. Any such change will be notified to the parties should this occur.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Jurisprudentially, in my view, the basic principles to deal with the current matter are to be drawn as much from the overview provided by Brown J in Mazorski v Albright to which I have referred, as well as, to an appropriate degree, from the Full Court judgment in Vasser v Taylor-Black.[10] For the purposes of this case, I note that, at [49] the Full Court stated (emphasis added):It appears to us that by failing to grant the adjournment his Honour deprived himself of the opportunity to have the best available evidence to determine this young child’s best interests. We note a short adjournment would have also permitted an independent children’s lawyer to be appointed, whose enquiries and submissions would no doubt have been very relevant to the orders to be made.[10] (2008) 37 Fam LR 256. While no adjournment application is before the Court in this matter, from this latter case I seek to draw, for the benefit of the Court and for the parties, and especially for the child’s best interests, the singular importance of having the benefit of the best evidence available to it before making any significant parenting orders. That “best evidence” will come from the expert’s report in the not too distant future. From this also follows what might be described, as part of a general precautionary principle, that in the absence of that report, the Court should proceed cautiously so as not to make too many changes in [X]’s already long-running, rather turbulent life as he continues to be embroiled in the ceaseless conflict between his parents.[11][11] In making these comments, among other provisions I have in mind s.60CC(3)(d). For my part, I might also mention that, notwithstanding the plethora of issues about which the parties have regularly fought, I do not recall there ever being any issue in relation to matters of practical difficulty and expense as contemplated by s.60CC(3)(e). And, notwithstanding Mr Tobey’s regular questioning of Ms Rezek’s capacity to care for [X], at this stage of the proceedings I do not understand there to have been any matters raised formally that would go to the Court’s consideration of s.60CC(3)(f) & (g). On the basis of that precautionary principle, which militates against major change in [X]’s life – particularly his living situation – in my view it is in [X]’s best interests to continue to live with Mrs F. As I have previously mentioned, her relationship with [X] and [Y], and the reasons for her involvement therein, are set out in my judgment of 4th June 2010. I need not, and will not, repeat what was previously said there. Having indicated that [X] should continue to live with his sister’s Grandmother, which will continue to enable [X] and [Y] to spend significant amounts of time together and thereby importantly to provide something of a ‘conflict-free’ zone (if not refuge) in his life, in my view it is also important for two other things to occur: (a) [X] should be able to spend as much time with both of his parents as possible, and (b) the parties should not come into contact with each other at all. So: how to balance all of these considerations and make orders that are in [X]’s best interests?[12][12] Clearly, given his age, s.60CC(3)(a) has no work to do in this case.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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