FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOBEY & REZEK (No.3) | [2011] FMCAfam 1336 |
| FAMILY LAW – Parenting & property – high levels of intractable conflict between parents – best interest considerations for young child – trial management issues – admission of evidence from earlier relationship in relation to family or relationship violence. |
| Evidence Act 1995 (Cth), ss.97, 135 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2), 60CC(3)(a)-(4A), 61DA, 65DAA, 75(2), 79 Federal Magistrates Act 1999 (Cth), s.3 Federal Magistrates Court Rules 2001, r.1.03 |
| AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 B. Cairns, Australian Civil Procedure (Ninth Edition) (Sydney: Lawbook Co., 2011) |
| Applicant: | MR TOBEY |
| Respondent: | MS REZEK |
| File Number: | CAC 740 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 23 -27 May 2011 & 7 – 8 September 2011 |
| Date of Last Submission: | 23 September 2011 |
| Delivered at: | Canberra |
| Delivered on: | 14 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Tonkin (until 5 September 2011; thereafter self-represented litigant) |
| Solicitors for the Applicant: | Capon & Hubert (until 5 September 2011; thereafter self-represented litigant) |
| Counsel for the Respondent: | Ms J. Godtschalk |
| Solicitors for the Respondent: | Legal Aid ACT |
Independent Children’s Lawyer: Mrs A. Evans, Evans Family Lawyers
Counsel for the Independent
Children’s Lawyer: Ms J. Haughton
ORDERS
All prior parenting Orders be discharged.
The child [X] born [in] 2005 live with the Mother.
The Mother have sole parental responsibility for the child’s education and psychological testing, however, for his primary education the child is to remain at [A] School unless otherwise agreed.
The Mother continue to authorise the child’s school and counsellors to provide information to the Father upon his request.
Any information provided by the Father to the school or to the child’s counsellors shall be in writing and copied to the Mother.
Each parent will provide an authority to each of the child’s treating medical practitioners authorising the release of information to the other parent regarding the child’s medical treatment.
Each parent will contact the other forthwith, in the first instance by text message, then by email, in the event of the following involving the child:
(a)A medical emergency;
(b)The child’s non-attendance at school;
(c)Illness of the child.
The Mother and Father consult in relation to other issues of parental responsibility but…
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- AGLC
- Tobey and Rezek (No.3) [2011] FMCAfam 1336
- Case
- [2011] FMCAfam 1336
- Decision Date
CaseChat Overview and Summary
The court had to decide on the allocation of the child's living time between the parents, ensuring that the arrangement was conducive to the child's well-being. It also had to determine which parent would have sole responsibility for the child's education and psychological testing, while considering the child's primary school placement. Additionally, the court needed to establish guidelines for information sharing between the parents and their respective schools and counsellors, as well as medical practitioners. The court also had to outline procedures for communication between the parents in case of emergencies, non-attendance at school, or illness, and decide who would make the final decisions when the parents could not agree on other parental responsibilities.
In its reasoning, the court thoroughly examined the evidence and submissions from both parties to ensure that the orders were in the best interests of the child. The court acknowledged the importance of stability and continuity in the child's life and sought to balance the parents' rights and responsibilities. The court concluded that the child should primarily reside with the mother but also spend significant time with the father, with detailed arrangements for school terms, holidays, and special occasions. The court also imposed restrictions on the parents' behaviour towards each other and the child, and ordered financial payments from the father to the mother and the father's superannuation fund.
The court made comprehensive orders that provided detailed arrangements for the child's living time, education, medical care, and communication between the parents. The court also imposed restrictions on the parents' behaviour and ordered financial payments. The final orders ensured that the child's well-being was prioritised, while also recognising the rights and responsibilities of both parents.
Orders
Orders of the court
1.
All prior parenting Orders be discharged.
2.
The child [X] born [in] 2005 live with the Mother.
3.
The Mother have sole parental responsibility for the child’s education and psychological testing, however, for his primary education the child is to remain at [A] School unless otherwise agreed.
4.
The Mother continue to authorise the child’s school and counsellors to provide information to the Father upon his request.
5.
Any information provided by the Father to the school or to the child’s counsellors shall be in writing and copied to the Mother.
6.
Each parent will provide an authority to each of the child’s treating medical practitioners authorising the release of information to the other parent regarding the child’s medical treatment.
7.
Each parent will contact the other forthwith, in the first instance by text message, then by email, in the event of the following involving the child:
(a) A medical emergency;
(b) The child’s non-attendance at school;
(c) Illness of the child.
8.
The Mother and Father consult in relation to other issues of parental responsibility but in the event they cannot agree, the Mother shall make the final decisions.
9.
The child live with the Father as follows:
(a) During the school term time in week one from the conclusion of school Friday to the commencement of school the following Monday and in each alternate week;
(b) During school term time in week two from the conclusion of school Monday to the commencement of school Tuesday and in each alternate week;
(c) For one half of all ACT school holiday periods, inclusive of the Christmas holiday period, as agreed between the parties in writing and failing agreement, for the first half in odd numbered years and the second half in even numbered years.
(d) The Father’s time pursuant to order 9(a) will commence in the first week of school term if the Father exercised the first half of the holidays with the child and the second week in school term if the Father exercises the second half of the holidays with the child;
(e) The Father’s time pursuant to order 9(b) will commence in the first week of school term if the Father exercised the second half of the holidays with the child and the second week in school term if the Father exercises the first half of the holidays with the child;
(f) The Father’s time with the child pursuant to Order 9(a) and (b) will be suspended during each of the ACT school holiday periods which are defined as commencing at the conclusion of school on the last day of each term and will resume at the commencement of school on the first day of the next school term period.
10.
Each party will spend time with the child as follows:
(a) On Mother’s and Father’s Day as follows:
(i) With the Father each Father’s Day from 10.00am to 6.00pm;
(ii) With the Mother each Mother’s Day from 10.00am to 6.00pm.
(b) On the parent’s birthdays as follows;
(i) With the Father on the Father’s birthday if falling on a school day from immediately after school until 8.00pm that day, and if falling on a non school day, from 10.00am to 6.00pm that day.
(ii) With the Mother on the Mother’s birthday if falling on a school day from immediately after school until 8.00pm that day, and if falling on a non school day, from 10.00am to 6.00pm that day.
(c) For the child’s birthday as follows:
(i) With the Father from after school to 7.00pm if falling on a school day, and if falling on a non school day from 10.00am until 2.00pm that day, commencing in 2010 and each alternate year thereafter;
(ii) With the Mother from after school to 7.00pm if falling on a school day, and if falling on a non school day from 10.00am until 2.00pm that day, commencing in 2011 and each alternate year thereafter.
(d) At such other times as agreed between the parties.
11.
The Father will communicate with the child each Tuesday and Thursday between the hours of 7.00pm and 7.30pm with the Father to telephone the child for the purposes of exercising such time.
12.
For the purposes of changeover of the child, each parent will collect and return the child on school days to and from the child’s school and if falling on non school days, changeover shall occur at ‘[M]’ if [M] is available (and the parties shall do all things necessary to ensure [M] is available as a changeover point) and if [M] is not available the changeover shall occur at [omitted] Cinema in [omitted] unless otherwise agreed between the parties in writing.
13.
The Mother may use an agent to effect the changeover. It is noted that, in the absence of notice by the Father via text message, the Mother will not be required to wait more than 20 minutes after the designated time for delivering the child to the Father.
14.
Unless as otherwise agreed between the parties in writing, the child will attend upon Dr W and/or [C] Family Practice (while the Mother continues to reside close to it) for medical issues requiring a general practitioner.
15.
In respect of any counselling or other psychological therapy which may be required for the child, both parties agree that they will consult with Ms H, or such other person as agreed between the parties in writing, as to an appropriate Psychologist or Counsellor for him.
16.
In the event the Mother’s treating psychiatrist or psychologist determines that the Mother is temporarily too ill to care for the child, the child will stay with either Ms F or Ms C until the Mother’s treating professional determines she is sufficiently well to resume care of the child, and the Orders in respect of the child’s time with the Father will continue.
17.
Each parent is restrained from using physical discipline upon, or verbal abuse directed to, the child.
18.
Each parent is restrained from disparaging the other parent to, or in front of, the child, or from permitting any other person to do so.
19.
Each parent is restrained from making any further applications in relation to the child without the prior leave of the Court.
20.
Within 60 days of the date of these Orders, the Applicant pay the Respondent the sum of $124,493.00.
21.
In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Tobey from his interest in the [P] Superannuation ([P]), Ms Rezek is entitled to be paid (by the Trustee of the [P]) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulation 2001 using a base amount of $98,068.00 and there shall be a corresponding reduction in the amount Mr Tobey would be entitled to receive but for these Orders.
22.
The Operative time for Order 21 is four (4) business days after the service of these Orders upon the Trustee.
23.
A new assessment for child support be made at the earliest possible time after the date of these Orders.
24.
The Application to have the costs of Dr M shared equally between the parties is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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