Tobey and Rezek (No.3)
[2011] FMCAfam 1336
•14 December 2011
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 in the event they cannot agree, the Mother shall make the final decisions.
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.
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.
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.
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.
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.
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.
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.
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.
Each parent is restrained from using physical discipline upon, or verbal abuse directed to, the child.
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.
Each parent is restrained from making any further applications in relation to the child without the prior leave of the Court.
Within 60 days of the date of these Orders, the Applicant pay the Respondent the sum of $124,493.00.
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.
The Operative time for Order 21 is four (4) business days after the service of these Orders upon the Trustee.
A new assessment for child support be made at the earliest possible time after the date of these Orders.
The Application to have the costs of Dr M shared equally between the parties is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tobey & Rezek (No.3) 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
REASONS FOR JUDGMENT
Introduction
This matter essentially concerns parenting orders for 5 year old [X]. Fortunately, or unfortunately, this simple statement belies the years of litigation that have consumed his parents.[1] I say “essentially concerns parenting” because the Court must also make property orders.[2] However, the overwhelming preoccupation of all the parties during the trial was in relation to evidence concerning parenting and the appropriate orders that should be made in the light of it.
[1] Between May 2008 and January 2011, there were 17 formal applications, 15 of which were brought by the Applicant Father, Mr Tobey. Most of the applications have related to parenting. There were seven reports tendered during the trial, four of which were ordered by the Court. Included in this number are (a) two Reports from the Court appointed expert, psychiatrist Dr M, and (b) a Report provided by the ACT Office of Children, Youth and Family Support pursuant to s.69ZW of the Family Law Act1975 (Cth) (“the Act”).
[2] A spousal maintenance application brought by Ms Rezek was formally withdrawn on the first morning of the trial. See Transcript, p.13. (For ease of reference, unless otherwise required, references in these reasons to the Transcript will simply be to the page number, thus “T 13”).
Indeed, at one of a number of pre-trial directions hearings, the solicitors for the parties, and for the Applicant, Mr Tobey in particular, confirmed: “It’s a very simple case in the sense that it is. It’s simply residence and time spent.”[3]
[3] See Transcript (17th May 2011) p.6.
I do not disagree with that assessment. However, given the history of the matter, the number of applications involved, the length of the trial and the exorbitant resources the matter has consumed over the years – that is, in time, experts, Court resources, and not least the prodigious and close to ruinous fees paid by the Father (the Mother being legally aided) – the simplicity of the basic issue was often clouded by the intensity of the litigious contest and the despairingly fractious parental relationship.
The principal dynamic and driving forces behind the years of litigation are twofold. First, there is the palpable frustration of the Applicant Father and his almost consuming (and understandable) desire to spend more time with his son. The Father sees the Mother as deliberately inhibiting, if not abjectly obstructing, the time that he spends (and in his view, should spend) with the only child of the relationship.
The other dynamic is the Mother’s no less palpable angst in dealing with the Father, who she experiences as, at times angry, and often-times, controlling. Her angst has led to one well-documented, extended stint in the secure section of the psychiatric unit in [omitted] Hospital. She also contends with a long-time diagnosed, and mostly kept readily under control, bi-polar condition.
There is no doubt that both parents love their son deeply. However, the features of the relationship just noted, and clearly on display throughout the evidence detailed later in these reasons, testify to the patent inability of the parties to co-parent, in a co-operative and appropriate manner, their still quite young son.
It is as well at the outset to record that, for the reasons that follow, in my view the best interests of [X] are served by making orders as sought by the Independent Children’s Lawyer (“the ICL”), but with a number of variations, as noted. In effect, those orders provide for [X] to live with his Mother, and to spend shorter, regular, defined time with his Father. [X]'s Mother, for reasons also explained later, shall have sole parental responsibility.
Background
Very unusually in this Court, the trial occupied the better part of seven days, albeit that they were divided up over a period of time. The trial was also somewhat truncated because, unfortunately and in certain respects concerningly, the Applicant Father, who is a respected [occupation omitted] in Canberra, became a self-represented litigant for the last two days of the trial.[4] In no way critically do I say that some allowances were required for Mr Tobey during the all-day cross-examination of the Court appointed expert (psychiatrist, Dr M), and for the final submissions.
[4] In the course of his cross-examination Mr Tobey said that he thought he had already paid approximately $120,000 in legal fees, and that he owed still considerably more than a further $68,000. See T 110. Later in the proceedings, Mr Tobey confirmed that he still owed his former solicitors $97,000, and that they had lodged a caveat over his recently acquired property in relation to these, as yet, unpaid fees. See Transcript (8th September 2011) p.37. It was this financial drain that resulted in him being self-represented for the final two days of the trial. I simply observe that Mr Tobey is a highly qualified, and highly paid, [occupation omitted]. Why it would be felt necessary to lodge a caveat over his property in relation to fees still owing would seem, respectfully, rather excessive. Such matters are, of course, best left to Mr Tobey and his former solicitors.
I note that one immediate consequence about Mr Tobey’s case was that, in a significant number of respects, there were three, somewhat distinct iterations of it. While it is not uncommon in proceedings that parties change their position, it might be said that Mr Tobey’s expression of his position, apart from an express change via a Minute of Orders, was dependent on whether he was represented by his then solicitor, his then Counsel, or whether he was self-represented. I stress again that none of this is said critically of any of the persons mentioned. It was simply a fact of life in the course of these long-running proceedings.
Thus, a first expression of position was put summarily by his then solicitor in a pre-trial directions hearing, which was that the Mother had systematically engaged in a course of conduct, since the separation of the parties, which had effectively thwarted the Father’s time with the child.[5] Procedurally, notwithstanding the usual and well-known practices of this Court to proceed by way of affidavit evidence, and to keep the number of witnesses to a minimum, Mr Tobey’s solicitor indicated that it was the intention to call every report writer over the last four years, as well as sundry other witnesses, many of whom were not on affidavit.
[5] See Transcript (5th May 2011) pp.11 & 12. I should also note that there were two directions hearings prior to the trial, on 5th and 17th May. On both occasions, the Court stressed the need for strict trial management, and referred the parties to the detailed management directions given by Murphy J in Ryeburn & Ryeburn (No.2) [2010] FamCA 882. I mention this simply to highlight that all parties were made aware of the need for careful preparation, and that simply because a party wished to call someone as a witness, it ultimately was a matter for the Court to determine, in the light of submissions, whether that person would actually be called.
Having regard to modern case-management, such a submission and such a course for a trial of, effectively, the unbridled calling of witnesses, was untenable. Indeed, given the experience of Mr Tobey’s solicitors in family law litigation, it was an astonishing submission. It defied (a) the objects and practices of this Court as set out in the Federal Magistrates Act 1999 (Cth),[6] (b) the objects and practices of this Court as set out in the Federal Magistrates Court Rules 2001,[7] and (c) among multiple cases, the recent High Court decision in AON Risk Services Australia Limited v Australian National University where the Court made plain the importance of, among other things, recognising that the services provided by a court are a public resource, which must be used in the most efficient manner possible.[8]
[6] Among other places, see s.3 of that Act.
[7] See, for example, Rule 1.03.
[8] AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. See also the discussion by Callinan J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [375] where his Honour noted that “case management”, which is not “novel”, is designed, among other things, “to expedite litigation.”
To stress the matter further, standard “practice texts”, and innumerable cases confirm that the submission by Mr Tobey’s [then] solicitor was completely unsustainable, the complete antithesis of modern case management, and totally discordant with the day to day practices of this Court.[9] As it was, the parties had an almost luxurious amount of time, by the usual standards of trial length in this Court. Their evidence alone occupied the better part of five days, with the total trial time occupying seven (7) days.
[9] See, for example, B. Cairns, Australian Civil Procedure (Ninth Edition) (Sydney: Lawbook Co., 2011), Chapter 2 “Managing Litigation and the Adversary System” and the plentiful cases cited there; J. Hunter, C. Cameron, T. Henning, Litigation I: Civil Procedure (Seventh Edition) (Sydney: LexisNexis Butterworths, 2005) [1.14] – [1.21] “Case Management Schemes.”
To return to the substantive issues, it was submitted by his solicitor that Mr Tobey would, as a consequence of Ms Rezek’s actions, be seeking orders that [X] live with him and spend limited time with the Mother. In relation to property, it was also submitted prior to the trial that a significant “waste” argument would be mounted by Mr Tobey against Ms Rezek in relation to the value of the former residence of the parties.
The second iteration took place during the trial proper, where orders were sought whereby [X] would live with his Mother and spend time with his Father, but ultimately leading to a shared care – equal time arrangement. This was pursued notwithstanding that the expert evidence of Dr M did not support such a course.
The third expression of orders was spelt out when Mr Tobey was a self-represented litigant. I will deal with this final iteration of his case later in these reasons after having considered the evidence.
In order to understand better the litigious dynamic at work in these proceedings, it is as well to record in some detail some of the history of the litigation, as well as various elements that are relevant, but best dealt with and comprehended as discrete components of it, before becoming immersed in the larger mass of evidentiary detail.
These reasons proceed as follows: (a) Overview of the Litigation & Other Things; (b) Orders Sought (Parenting); (c) List of Exhibits; (d) Evidence of the Parties; (e) Other Evidence; (f) Expert Evidence; (g) Legal Principle; (h) Negotiating the Legislative Pathway; (i) Property Matters (including orders sought).
A. Overview of the Litigation & Other Things
Abbreviated History: The more detailed, immediate history of the litigation is set out in three judgments: two from this Court – [2010] FMCAfam 589 (delivered 4th June 2010), and [2010] FMCAfam 1466 (delivered 9th September 2010);[10] and one from the Full Court of the Family Court (Coleman J, in [2001] FamCAFC 86, delivered 8th April 2011).[11] The Full Court dismissed an appeal by Mr Tobey against the orders made on 9th September 2010. His Honour awarded costs in favour of Ms Rezek and the ICL.
[10] For the purposes of the second interim hearing, Mr Tobey was a self-represented litigant. This interim hearing, and for the last two days of the trial, were the only occasions when Mr Tobey was self-represented.
[11] The 25 page Chronology filed by the ICL on 20th May 2011, also provides a convenient overview of relevant events involving the parties. In referring to it, I should not be taken to be accepting (or for that matter denying) each and every matter referred to in it.
For current purposes, leaving aside the various applications and what can conveniently be described as “pre-history” set out in detail in the judgments to which I have referred, it is sufficient to note that parenting orders were made by consent in August 2009. Those orders provided for [X] to spend five (5) nights per fortnight with his Father. Those parenting arrangements were changed, in not insignificant ways, pursuant to orders made in the judgments just noted. I need not, and will not, repeat what is there set out.
Likewise, there is no need to recite the number and nature of applications brought, primarily by the Applicant Father. I will, however, note that among them were three separate applications by which the Father sought to take [X] overseas for significant periods of time (a) away from his Mother who has been his primary carer, and (b) notwithstanding that there was expert evidence before the Court that to do so was not in [X]’s best interests. In an earlier judgment I commented on my significant disquiet about lawyers who persist in bringing applications in circumstances where there is unequivocal and unchallenged expert evidence that patently blocks such an application, as well as the Court, as it did here on the two previous occasions, having also indicated the futility of such an application. It may, of course, have been the case that the client insisted that the application be pressed. Whatever the circumstance, the application for overseas travel was needless and caused the expense of even more constantly strained resources. In my view, it was a simple, unfortunate but poignant example of lack of insight on the part of the Father. That said, I also accept (as I note in more detail later) that the Father’s motives were essentially to include his young son in the various experiences of life in different countries. The limited capacity of a very young child to appreciate such experiences, at the same time as being away from his primary carer for an extended period of time, were points made on numerous occasions, but to little avail.
Contempt and contravention applications filed by the Father on 20th January 2011 were formally discontinued by his solicitor in the course of a directions hearing held shortly before the commencement of the trial.[12]
[12] See Transcript (5th May 2011) p.3. The requisite formal notice of discontinuance was filed in the Registry on the same day.
Mother’s Hospitalisation & Third Party Intervention: In late May 2010, the Mother, Ms Rezek, admitted herself to hospital. Shortly thereafter, she was transferred to the secure psychiatric unit of [omitted] Hospital. These unfortunate and distressing matters are also the subject of detailed history in the judgment delivered on 4th June, [2010] FMCAfam 589. The orders made on that occasion included leave being granted for the Grandmother of her daughter, [Y] ([X]’s sister) (conceived to a different Father than [X]’s), to intervene in the proceedings. Orders were also made on that occasion for [X] to live with his Father for nine nights per fortnight, and for the other five nights to live with [Y]’s Grandmother, Ms F, primarily – but not only – so as to ensure that [X] spent significant time with his sister, [Y].
Procedurally, it is sufficient to note that Ms F formally remained a party to the proceedings until she filed a Notice of Discontinuance on 21st April 2011. For the sake of completeness, however, I note that she filed an affidavit in support of Ms Rezek on 6th May 2011.
Evidence of Ms O & Father’s Response
: Ms O is a former spouse of
Mr Tobey. They were married; all up, they were in a relationship for some 10 years or so. She is now a [occupation omitted] in Victoria. She filed an affidavit in these proceedings, in support of the Mother, on 18th August 2009.[13] There was some contest in the course of the trial (and highlighted at one of the pre-trial directions hearings) whether that affidavit should be admitted into evidence, and partly in consequence, whether Ms O could or should be called to give evidence and otherwise be available for cross-examination.
[13] Ms O and the Mother have been friends since July 2008. See T 316.
To speak generally, some of the issues surrounding the admissibility of Ms O’s affidavit related to its relevance and probative value (in the light of when the relationship ended – in 1999), as well as whether it could be used in relation to any possible “tendency evidence”, pursuant to s.97 of the Evidence Act 1995 (Cth).[14] In the result, after submissions, relying primarily on s.135 of the Evidence Act 1995, I ruled that Ms O’s affidavit should be admitted.[15] In the light of the opposition to her affidavit, she was not required for cross-examination by Mr Tobey; however, the ICL did wish to cross-examine her. I deal with Ms O’s evidence later in these reasons in more detail. However, in essence, the significance of her evidence, as suggested by Counsel for the ICL (which I accept) was that Mr Tobey’s relationship with
Ms O bore strikingly similar hall-marks to those to which Ms Rezek attested, notably that in certain circumstances, Mr Tobey was given to shortness of temper, swearing and outbursts of a violent kind, such as throwing, or kicking at, things.
[14][15] See T 185.
There was one other curious aspect in relation to Ms O’s evidence. I have already noted that her affidavit was filed in August 2009. On the fourth day of the trial, Mr Tobey's Counsel handed up in Court an affidavit sworn by her client in reply to the various matters canvassed in Ms O’s affidavit.[16] Copies were, of course, provided to Counsel for the Mother and the ICL. A little later in the morning, although Counsel for the Mother and the ICL strongly urged me to read Mr Tobey’s affidavit so recently handed up by his Counsel, it was suddenly withdrawn, doubtless acting on instructions.[17] I did not read this curiously tendered, then suddenly withdrawn, affidavit.
[16] See T 261, 288, 289 & 290.
[17] T 293 & 294.
One consequence from this course of action by Mr Tobey's Counsel led Counsel for the ICL to make a Jones v Dunkel submission in relation to Ms O’s evidence.[18] Among other things, the ICL submitted that
Mr Tobey had the opportunity to lead evidence in chief in relation to any of the matters raised by Ms O.[19] Alternatively, it was submitted that Mr Tobey could have sought leave to adduce evidence in reply.[20] Neither course was pursued. These and related matters are considered in detail later in these reasons. It may assist, nonetheless, to note here that where there is any inconsistency between the evidence of
Mr Tobey and Ms O, I prefer and accept her evidence.
[18] Jones v Dunkel (1959) 101 CLR 298; Transcript (8th September 2011) p.9.
[19] Apart from the [Ms O] affidavit dating from 2009, it was listed among the affidavits relied on by Ms Rezek in the Mother’s Case Outline Document, filed on 16th May 2011. Thus, Mr Tobey had ample notice of the contentions made, and ample opportunity to address them. He did not do so, other than by the suddenly tendered, and equally suddenly withdrawn, affidavit to which I have referred.
[20] See Transcript (8th September 2011) p.21.
These matters will suffice by way of immediate history and procedural aspects of the litigation. Others are dealt with in the course of the evidence, which occurs after setting out (a) the orders sought by both parties and by the ICL in relation to parenting, and (b) the extensive list of materials that were formally before the Court as exhibits.
B. Orders Sought by the Parties (Parenting)
The Father sought parenting Orders as follows:
1. The father have sole parental responsibility for [X] born [in] 2005.
2. [X] live with his father.
3. [X] spend time with his mother as follows:
(a) For 7 nights per fortnight, commencing from after school on alternate weeks, from after school on Wednesday until before school on the following Wednesday;
(b) For the second half of the gazetted ACT school term holidays, commencing on the second Monday until before school on the first day of term, with handover from the father to [M] at 3 PM.
(c) For the second half of the gazetted ACT December School holidays, commencing on the fourth Monday until before school on the first day of term, with handover from the father to [M] at 9 AM.
(d) Other contact between [X] and the parents, including Christmas Day, the child’s and parent’s birthdays, the child’s sister’s birthday, Mother’s Day and Father’s Day, to be arranged by written agreement between the parents and the Intermediary.
4. Ms H to be appointed as Intermediary as follows:
4.1 Each parent is to attend upon Ms H for Parental Counselling sessions at a frequency and session duration determined by Ms H, and each parent shall bear the costs of this counselling as determined by Ms H.
4.2 [X] shall not attend any session with Ms H, except as specifically requested by Ms H, and then only after each parent receives written advice of this request by Ms H.
4.3 The parties agree that proposed changes to time spent with [X], grievances and other matters of dispute between the parties are to be determined by Ms H after each parent is heard and agree to abide by this determination.
4.4 If a determination cannot be made, Ms H is to consult with the ICL and the parties agree to abide by the determination.
4.5 The parties agree that Ms H may make such enquiries as she regards necessary in order to come to a determination, including correspondence with [X]’s school, with medical practitioners or other therapists, and with family members.
4.6 Either Ms H or the ICL is at liberty to apply to the Court in respect of parenting matters. The parents are not to Apply to the Court except on an urgent interim basis on matters of child welfare.
4.7 The parties agree that all consultations and communication with Ms H are private and shall not use or disseminate these communications except as instructed by Ms H.
4.8 Ms H may withdraw as Intermediary by seeking leave from the Court.
5. Not after 1 February 2017, the father is to communicate with the mother in writing as to [X]’s secondary schooling, and do everything possible to ensure the mother may participate in pre-commencement activities.
6. Neither party is to denigrate the other to [X] or any other child.
The Mother sought parenting orders as follows:
1. That all current parenting orders be discharged.
2. That the mother have sole parental responsibility for the child [X] born [in] 2005, in relation to education and psychological counselling.
3. That the mother continue to authorise the child’s school and counsellors to provide information to the father upon his request.
4. That any information provided by the father to the school or to [X]’s counsellors shall be in writing and copied to the mother.
5. That 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.
6. That the child live with the mother.
7. That the child spend time with the father as follows:
a. From after school (3pm) Friday until 4pm Sunday each alternate weekend;
b. Such time during school holiday periods as recommended by Dr M.
8. That during Easter and Christmas Order7 is suspended and the child will spend time with the Father as follows:
a. From 3pm Easter Thursday until 3pm Easter Sunday in odd numbered years;
b. From 3pm Easter Sunday until 3pm Easter Monday in even numbered years;
c. From 3pm Christmas Eve until 3pm Boxing Day in odd numbered years;
d. From 3pm Boxing Day until 3pm 28 December in even numbered years.
9. That where possible changeover will be effected at the school. If the school is not available then changeover will occur at [M] at 4pm on the relevant day. If [M] is not available changeover will occur at the [omitted] Cinemas at 4pm on the relevant day. The mother may use an agent to effect the changeover. It is noted that the mother will not be required to wait more than 20 minutes after the designated time for delivering the child to the father.
10. That 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 of 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.
11. That in the event the Court determines other than as per Order 10, the child will spend time with his sister [Y] from 3pm Friday until 9am Tuesday each second weekend, and from 3pm Wednesday until 9am Thursday in the alternate weeks with changeovers to continue in accordance with Order 9.
12. That each parent is restrained from using physical discipline upon, or verbal abuse directed to, the child.
13. That 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.
14. That each parent be restrained from making any further applications in relation to the child without leave of the Court.
Orders Sought by the ICL
The ICL sought Orders as follows:
1. All prior parenting Orders be discharged.
2. The child namely [X] born [in] 2005 live with the Mother.
3. The Mother have sole parental responsibility for the child’s education however [X] to remain at [A] School unless otherwise agreed or as ordered.
4. The parties equally share parental responsibility of the child and to this effect:
a. Each parent will provide and authority to the child’s school authorising the release of information to the other parent including but not limited to school reports, school photograph order forms, invitations and flyers for school events and that each parent is at liberty to attend events involving the child at school;
b. 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;
c. Each parent will contact the other forthwith in the event of the following involving the child:
i. A medical emergency;
ii. The child’s non-attendance at school;
iii. Illness of the child.
d. Both parties are restrained from enrolling the child into additional extracurricular activities without the prior written consent of the other parent;
e. Each parent will take the child to extracurricular activities falling during the time that the child is in either party’s care, with extracurricular activities to include schooling, sporting or social activities that the child would ordinarily attend or have been invited to attend.
5. 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 5(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 5(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 5(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.
6. Each party will spend time with [X] 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. In the event that the mother is hospitalised with respect to her mental health on an overnight period the following will apply:
a. The child will live with the father until such time as the mother has been discharged from hospital and can provide a letter from her treating psychiatrist confirming that she is able to resume care of the child;
b. During any period when the mother is hospitalised, Order 2 and Orders 5(a) and (b) will be suspended;
c. Upon the mother’s discharge from hospital and production of a letter from her treating psychiatrist the child will live with the mother pursuant to Order 2 and the father’s time with the child will resume pursuant to Order 5(a) and (b);
d. The father will facilitate the child spending time with [Y] as follows:
i. From after school Friday to the commencement of school Monday on week one and each alternate week;
ii. From after school Monday to the commencement of school Tuesday in the second week and each alternate week.
C. List of Exhibits
| Exhibit | Description of Exhibit |
| A 1 | Report of Dr S |
| A 2 | Family Report of [name omitted] 01.10.08 |
| A 3 | Report of Dr C attached to Affidavit of 18.02.09 |
| A 4 | Report of Ms H |
| A 5 | Family Report of [name omitted] 27.07.10 |
| A 6 | OCYFS Report |
| A 7 | Family Report of Dr M 22.3.11 |
| B | 2 page Incident Report against Mr Tobey |
| C | Emails re: [X]’s schooling |
| D | [bank omitted] Documents |
| E 1 | Valuation by CBRE |
| E 2 | Valuation by DPS |
| F | PIPS Student Report |
| G | Bundle of documents re: letters to arrange contact for [Y] & [X] |
| H | Copy of front page of Contract for the Sale of Land |
| I | Photographs of [X]’s injuries |
| J | Report of Dr B |
| K | Report of Dr U |
| L | Transcribed Diary Notes of Ms Rezek |
| M | Collection of emails (2 pages) |
| N | Email correspondence excluding photos re: [X] being unwell |
| O | AFP Records |
| P | ACT Department of Education & Training records (tendered document and whole file) |
| Q 1 | Letter from Capon & Hubert dated 19.01.09 |
| Q 2 | Email regarding start of school |
| Q 3 | Email regarding speech |
| R | Further emails re: schooling |
| S | Subpoena records: Mental Health ACT |
| T | Subpoena records: [omitted] Hospital (3 of 3 sleeves) |
| U | Subpoena records: Psychiatry Group |
| V | Supplementary Expert Report of Dr M |
| W | [A] School report of [X] |
| X | Photographs released by AFP |
| Y | Report of Dr T to Dr M |
| Z | Caveat on property of Mr Tobey |
D. Evidence of the Parties
In what follows, I seek not to address each and every item that was canvassed in the course of the trial. Rather, as economically as possible, I provide a summary of the evidence of both parties, followed by that given by Ms O, and Dr M. I do so by dealing firstly with parenting matters, then the rather more limited evidence in relation to property.
I should also mention that, before either of the parties gave their evidence, Counsel for the ICL informed the Court that the ICL’s preliminary view (which had been communicated to the solicitors for each of the parties) was that [X]’s primary residence should remain with his Mother and that Ms Rezek should have sole parental responsibility.[21]
[21] See T 24 ff.
Mr Tobey
Parenting
: At the outset of his evidence in relation to parenting,
Mr Tobey confirmed that the relationship with the Mother was “toxic” and that it is characterised by “high conflict.”[22] He also said that, notwithstanding this conflict and acrimony, he still respects the Mother’s views as a parent. He also insisted that he had sensitivity and insight into [X]’s needs.[23]
[22] T 32 & 33.
[23] T 31 & 33.
There followed an exploration of the orders which he then sought, and particularly why he sought an order that he have sole parental responsibility.
In short, he said that he complies with orders, even “odious ones”, whereas the Mother does not. It was, in his view, precisely or primarily because the Mother does not comply with orders that there is conflict between the parties.[24]
[24] T 37.
Respectfully, such a view is at least gauche or naïve. It is certainly untenable, and quite unrealistic, in the light of the history of the litigation and the whole of the evidence at trial. The causes of the conflict are rather more deep-seated, much more long-standing, and a tad more nuanced.
It is not said critically that Mr Tobey confirmed that his approach to parenting, and to one particular issue, namely [X]’s schooling (and whether he was ready to advance beyond pre-school) was “a thoughtful and scholarly approach to the issue.”[25]
[25] T 42.
In this regard, I simply note, as I do with other aspects of the evidence provided by or on behalf of Mr Tobey, that it was not as complete as one would have wished. For example, later in his cross-examination Mr Tobey was asked a series of questions about correspondence concerning whether [X] should repeat or spend another year in pre-school.[26] Unfortunately, a relevant email, dated 11th September 2009, which recommended that [X] spend another year in pre-school, which was contrary to Mr Tobey’s wish for his son, was not part of
Mr Tobey’s material. It only came to light when it was tendered by
Ms Rezek. It became exhibit C. Why those then responsible for conducting his case did not include it, as with other omissions noted later, was never explained.
[26] Generally, see the discussion at T 104 -109.
I have no doubt about Mr Tobey’s most earnest endeavours in this regard, as with almost all others. However, parenting is not, per se, an academic enterprise. Certainly, it is an area of proper and rigorous study. But parenting itself is perhaps more a combination of practicality, common-sense, and often-times also a mix of art, wisdom and something akin to intuition. To say that one parent has a more intuitive sense or grasp of parenting and its essentials in relation to a particular child is not, of itself, to criticise the other parent who does not have the same gifts and talents. While some things can be acquired or gleaned from academic study, and suggested by experts such as psychologists, counsellors and the like, often the day-to-day experience of parenting is a blend of the intuitive and the acquired. And, as with all aspects of life, the nature and extent of one parent’s gifts will not be the same as the other parent. Often, those gifts are complementary. In situations like those before the Court in this matter, the complementary becomes lost in the conflict, and perhaps subconsciously, even a cause or source of that conflict.
It follows from what has been said that many of what may be described as natural, parenting gifts (e.g. intuition, wisdom, etc) cannot be acquired by learning. By definition, “gifts” cannot be acquired by some ascetic practice. Certain virtues, such as restraint, may be able to be practised and therefore, over time, they become part of one’s character. Others, of the kind to which I have referred, are gifts pure and simple and cannot otherwise be acquired. One either has them (to varying degrees of course) or one does not.
Applying these general comments to the present matter, in the light of the evidence already noted and from what follows, in my view,
Ms Rezek has a greater appreciation and sensitivity to [X]’s needs than does Mr Tobey. This should not be taken, or be perceived, as a criticism. It is simply a statement of fact, that [X]'s Mother has these parenting gifts, and [X]'s Father either does not, or they are not as evident or as developed as they are in the Mother’s life and care of [X]. I stress: this is not a criticism of Mr Tobey. Clearly, as a [occupation omitted], he is an immensely gifted person. But each of us is “gifted” in different ways. He conceded readily that he sometimes wins at tennis and at golf, and sometimes loses; once upon a time he used to get angry and throw his racquet (and presumably his clubs), but does not do so now.[27] He seemingly did not take any umbrage at his lack of talent in this regard. Similarly, he should not take offence to, or take as criticism (unless specifically indicated), comments I have made, and those made later in these reasons, in relation to the respective ‘gifts and talents’ of each of the parties in relation to parenting.
[27] T 53.
One simple example may highlight some of the matters to which I have referred.
In the course of her evidence, Ms Rezek referred to an incident where [X] was scheduled to spend time with his Father, but at which time, he started to vomit. Mr Tobey confirmed to the Mother that he wanted photographic evidence that [X] was vomiting. Indeed, to say that his request to her was curt is an understatement. Exhibit N contains the brief email chain in relation to the incident. It began with Ms Rezek advising Mr Tobey that [X] would not be spending time with his Father because he was vomiting. Mr Tobey simply replied: “Send photo.”[28] I accept Ms Rezek’s account of the incident.[29]
[28] The photographs referred to in the email were not part of the tender.
[29] See T 247ff.
Unfortunately, in Mr Tobey’s large trial affidavit of 225 pages, the email chain starts and stops only with Ms Rezek’s notification that [X] was vomiting and would not be spending time with his Father.[30] This is to confirm that Mr Tobey’s response of “send photo” was not included in his material, nor was Ms Rezek’s follow-up email.
[30] See par.30 and annexure DRT 13 to Mr Tobey’s affidavit, filed 13th May 2011.
I view with alarm affidavits that do not set out all the relevant evidence, and/or do so selectively. How and why the other parts of the relevant emails were not included in Mr Tobey’s affidavit by his solicitors was not explained.
Respectfully, in my view, to want such evidence of a vomiting child was lacking, to a significant degree, in common sense and basic parenting insight. It also highlighted, yet again, the level of complete discord between the parties.
I return directly to Mr Tobey’s evidence.
A rather remarkable, but certainly candid, part of Mr Tobey’s evidence was his confirmation that the object of his orders (as then sought) was deliberately punitive. They were designed specifically, as he said, to penalise Ms Rezek for breaching orders over the last two years. He also conceded that one effect of the orders he sought, “taken in isolation”, would mean that [X] would not spend any time with his sister, [Y], for the next year.[31]
[31] T 44-45.
I simply comment, again, that such evidence highlighted the completely fractured relationship of the parties. It also showed the lack of insight in what Mr Tobey proposed and its certainly adverse impact on [X], not least him being deprived of the companionship of his sister [Y], with whom, as Mr Tobey (and everyone else) knew from an earlier report from Ms H, which was prepared in August 2009, [X] had a close and warm relationship. Ms H observed that “[Y] has been a constant presence in his life. [X] is likely to experience confusion and grief if separated from [Y] through a change of residence at this time.”[32]
[32] Ms H’s report is Exhibit A4. The relevant observation is at para.142 of the Report.
The next part of Mr Tobey’s evidence to consider is no less important because of its relevance to the evidence of Ms Rezek and that given by Ms O. It is conveniently dealt with under a separate heading.
‘Anger Management’ Issues
As recorded by Dr M in his Report (at para.49),[33] Mr Tobey denied that he had any significant anger management issues. He confirmed this denial in his cross-examination. He maintained his denial that he had never been treated for such matters.[34]
[33] Dr M's First Report, dated 22nd March 2011, became Exhibit A7. Dr M prepared a supplementary Report, dated 15th August 2011, which became Exhibit V.
[34] T 50.
Annexure A1 is a very brief report prepared by Dr S in May 2008. In it, under the heading “Treatment”, Dr S stated: “I have treated him [Mr Tobey] with anger management. He said that he has only been violent to objects and not people, though he appreciates that throwing something can be distressing to someone who sees the action. He said he threw a cheese grater in May 2006.” Dr S concluded this part of his report, saying (at p.3):
We are doing a CBT like approach to anger management. He has worked out a scale to objectify his anger and we have discussed strategies to better manage it.
“CBT” was acknowledged at the trial to be an abbreviation for “cognitive behaviour therapy.”
Dr S concluded that, in his opinion, Mr Tobey did not present any risk to his son.
It is sufficient to observe, without further comment, that Dr S’s assessment, and particularly his reporting, was necessarily based solely on what Mr Tobey told him, for example in relation to the throwing of a cheese grater. As noted further below, the “incident” of throwing the cheese grater was directed at Ms Rezek.
In answer to questions in his cross-examination Mr Tobey insisted that he went to see Dr S in relation to treatment “with anger management”, rather than “for anger management”. In my view, this was nothing more than exercise in semantics.
Mr Tobey also said that he went for this treatment essentially to mollify (my word) Ms Rezek; “what we thought the mother would … need to reassure her that I was doing everything to re-establish contact with [X].”[35] He also confirmed that, formerly, he had anger management issues when he was “younger” but that he does not do so now.[36]
[35] T 51.
[36] T 53.
Among other evidence, to be referred to in due course, an “accident/incident” report from the personnel records of [omitted] Hospital was tendered as a business record (Exhibit B) which has a diary note from a member of the hospital staff, dated December 2006, in which a telephone operator lodged a complaint in relation to [alleged] verbal abuse received by this person, and with reference also to other similar staff, from Mr Tobey. Of some note is that the record also refers to Mr Tobey swearing.[37]
[37] See the cross-examination of Mr Tobey by Counsel for the ICL on this matter at T 131 – 132.
I should also note that, in my view, the various comments by
Mr Tobey’s professional colleagues, all of whom said in their respective affidavits (but who were not required for cross-examination) that they had never seen Mr Tobey lose his temper, did not counter the history put before the Court in relation to his tendency to manifest anger. As explained or submitted by Counsel for the Mother and for the ICL, such is perfectly understandable. Professional colleagues relate to and deal with Mr Tobey in a very different environment to his former life partners and the every-day pressures that attend these more intimate relationships. I accept such a distinction, and the submissions made thereto.
More generally, I simply note, but need not discuss here because I deal with her evidence later, that there was on-going discussion in the course of Mr Tobey’s cross-examination about the relevance and importance of the evidence of Ms O, and Mr Tobey’s history of treatment for anger and depression - again with specific reference to his earlier relationship with Ms O but also in the context of his relationship with Ms Rezek.[38]
[38] See, for example, the extended discussion at T 134 – 144. This section of Transcript also dealt with, among other things, the related matters of relevant material going to Dr M that had not been previously supplied to him. It is also convenient here simply to note that Dr M referred to [X]’s sister [Y] referring to aspects of her experience of Mr Tobey’s anger. See Transcript (7th September 2011) pp.42-43 and para.80 of Dr M’s first Report. Also noteworthy here is the reference from the s.69ZW Report (Exhibit A6), which contained details of an attempted interview with [X] by police on 30th March 2010 over an allegation that Mr Tobey had punched [X], and [X] refused to engage with the police officers. He refused to discuss the matter with the police because of his fear that his Father would get angry. Dr M confirmed that [X] would be capable of forming such a view and communicating it. See Transcript (7th September 2011) pp.77-78.
It should also be noted that Mr Tobey acknowledged some, but denied other, incidents referred to in Ms O’s affidavit regarding instances or manifestations of his anger.[39]
[39] See T 148 – 150. In a rather earlier Report, that of Ms H (Exhibit A4), she noted (at para.128) in the context of a discussion about his anger that Mr Tobey exhibited a “considerable capacity for self-control.”
The Incident of 4th August 2010: This unfortunate incident, which involved Mr Tobey breaking down a door in Ms Rezek’s home, was prefaced in cross-examination by comments from Ms H’s report, to which I have earlier referred.[40]
[40] The detailed account of the incident, and its various facets, is set out in Ms Rezek’s affidavit, filed 5th May 2011, paras.165-177. Photographs from the incident, and the transcript of the proceedings in the ACT Magistrates Court on 5th August 2010, are annexures K & L to Ms Rezek’s affidavit. The Transcript from the Local Court proceedings confirm that, despite being warned by the police not to take action into his own hands, Mr Tobey said: “You leave me no choice but to take the matter into my own hands. I will break into the property.” Mr Tobey pleaded guilty to the charges of trespass and damage to property; no convictions were recorded. Mr Tobey’s account of the events are set out in paras.118-126 of his trial affidavit, filed on 13th May. One particular part of the events of 4th August which support Ms Rezek’s version of events, where Mr Tobey, having broken into Ms Rezek residence, pursued her with [X] to the neighbouring property, are set out in an affidavit provided by the neighbour, Ms B, filed on 5th May 2011. Ms B was not required for cross-examination. See also the material in Exhibits O and X.
It was put to Mr Tobey that as long ago as August 2009, Ms H had highlighted, at para.127 of her Report, Ms Rezek’s concern, and genuine belief, that “Mr Tobey does not cope in his parenting role and continues to have difficulty in managing his anger.” Ms H continued in her Report: “Regardless of the veracity of her claims, this personality style means her view is unlikely to be altered by information that suggests [X] is not at risk in his father’s care.” This whole paragraph from the Report was put to Mr Tobey in cross-examination. He confirmed that he remembered reading this paragraph.[41]
[41] T 57.
In the historical context of the observations of Ms H, it was then put to Mr Tobey that his actions of 4th August 2010, when he broke down the door of her residence, were “inconceivable.” After initially answering that his actions were not properly described in the way suggested, he then queried what was meant by “inconceivable.” After further discussion, he confirmed, and properly so, that his actions were not justifiable. He simply insisted that he was concerned for [X]’s safety in his Mother’s care, because of his concern about Ms Rezek’s mental health.
Mr Tobey’s comments and answers, in cross-examination, about his actions in breaking into Ms Rezek’s residence in August 2010, included that he did not consider that he was angry on this occasion, but rather that he was “frantic”.[42]
[42] T 59.
Mr Tobey accepted that his action in breaking into the house would have had a serious, adverse impact on [X]. He did not, and does not, accept, however, that his actions would have terrified Ms Rezek.[43]
[43] T 59. In a rather different, but still related, context Mr Tobey confirmed later in his cross-examination that he was aware that Ms Rezek’s mental health and well-being was important for her care of [X], and that he was aware, but insufficiently so, that his contravention and contempt applications in January 2011 would likely impact adversely on Ms Rezek. He contended that his primary focus – or “duty of care” (as he put it) - was in relation to [X]’s welfare. See T 116 – 117.
I cannot accept that Mr Tobey could not at the time, and subsequently, recognise that breaking into a person’s residence would not be an event that would cause that person to be fearful. Such action must have been, at the time and in the recollection of it, a seriously disconcerting, if not terrifying, event both for Ms Rezek and for [X].
It is sufficient for current purposes to note that the events of 4th August, and later events on 11th August (which I need not detail because, they, too, are sufficiently set out in the affidavit material to which I have referred, save that the police again were involved), were briefly canvassed by Counsel for the ICL later in Mr Tobey’s cross-examination.[44]
[44] Generally, see T 164-165.
Subject to later consideration of the evidence of Dr M, specifically on matters relating to anger and the like, for my part, I found Mr Tobey’s evidence in relation to the breaking into Ms Rezek’s residence on 4th August 2010 rather under-played. By this I mean that, while he acknowledged the significance of his actions on that occasion, in my view he did not do so as forthrightly or as fully as he should have. Accepting a certain level of disquiet, if not shame, at his actions, and accepting that they were rather out of character, nonetheless, they were acts of significant violence which would have caused grief and distress to Ms Rezek as well as to any other occupants of her house, including [X]. Whatever his concerns about Ms Rezek, the evidence makes plain that his actions were extreme. They were completely disproportionate, and utterly inappropriate, to whatever his concerns were.
While I accept the unchallenged evidence of Mr Tobey’s professional colleagues that they have never seen him lose his temper, in the light of what has been discussed already in these reasons, and what is considered later, and in particular the evidence of Ms Rezek and Ms O, I am satisfied that, on certain (and fortunately limited) occasions,
Mr Tobey has made his frustration and or anger manifest and has done so in a way that is alarming for those present. It is more likely than not, as Dr M notes in his second Report, that [X] has witnessed some of this protest or outrage. Dr M observed (at para.37 of the Second Report) that he had “the strong impression of [X]’s experience of trauma and developmental disruption in the context of his parents’ conflictual relationship, his Mother’s mental illness and pre-occupations regarding his Father and his Father’s anger.”
I turn next to Mr Tobey’s evidence in the light of Dr M’s first Report, dated 22nd March 2011.
Mr Tobey & Dr M's First Report: Again, summarily stated, the following matters may be noted.
First, to speak generally, Mr Tobey was highly critical of Dr M, both in the conduct of his assessment process and of his Report. For example, he considered that, notwithstanding Dr M’s conclusion at para.149 of his Report that there was “no evident instability on mental state examination” of Ms Rezek at the time of his assessment, Dr M had not in fact conducted such an examination. As will be observed later,
Dr M confirmed that he did conduct a ‘mental state examination’, as he said in his Report, but which Mr Tobey continued to deny.[45]
[45] See T 61.
Secondly, after generally disputing Dr M’s “findings”, Mr Tobey agreed that he had the opportunity to obtain a report from another psychiatrist to challenge Dr M's Report and the assessments and recommendations made in it. He also agreed that he chose not to do so.[46]
[46] T 64.
Thirdly, in a similar vein, Mr Tobey averred that Dr M’s examination was ‘going so far off the rails it was hard to believe.’ This comment of Mr Tobey was noted at para.117 of Dr M's Report. He confirmed in cross-examination that this remained his view.[47]
[47] T 69.
Fourthly, a matter of not insignificant concern was that, notwithstanding his constant and adverse contentions about
Ms Rezek’s mental health, and his disquiet about Dr M’s assessment and Report, Mr Tobey objected to her mental health records going to Dr M.[48] This incongruity was inexplicable. Ms Rezek had no objection to any of her health records going to Dr M.[49] Ultimately, those records of Ms Rezek were provided to Dr M and a supplementary report was prepared. Had all records gone to Dr M at the outset, it is conceivable that only one report would have been necessary, and the extra cost and expense (to everyone) of the second report avoided.
[48] See the Mother’s trial affidavit at paras.136-138, and T 69-70. At T 69, Mr Tobey confirmed that he wanted to limit the material from Ms Rezek going to Dr M.
[49] In the context of this discussion, Mr Tobey rejected a contention from Counsel for Ms Rezek that he was a controlling person, or that ‘control’ was a feature of his personality. See T 70.
Fifthly, in an affidavit of Mr Tobey filed in January 2011 in relation to contravention and contempt proceedings (which were later discontinued), he averred that [X] suffered from “serious psychological and neurological harm as a result of his chaotic home situation [with Ms Rezek] and [because] of his restricted contact with the father, his only stable and competent parent.” This statement was put to him in cross-examination. He confirmed that he believed it to be true. While he would not concede that he was not an expert for the purposes of such an assessment, in his answer to Counsel for the Mother, he contended that his experience and formal training as a [omitted] (which included an examination in [omitted]) entitled him to make such an assessment. Although previously noted, Mr Tobey’s [occupation omitted].
For my part, should it need to be confirmed, while I accept without question Mr Tobey’s wide [occupation omitted] experience, both as a matter of formal qualification, and of daily practice, his area of expertise is not psychiatry. That area of specialisation, both by formal qualification and as a matter of daily practice, is held, for the purposes of these proceedings, by Dr M. It follows that Dr M formally satisfies the prescriptions of an expert under s.79 of the Evidence Act 1995 (Cth), the Rules of this Court (Division 15.2), and as discussed by the High Court most recently in Dasreef Pty Ltd v Hawchar.[50] Accordingly, unless there is compelling evidence from an expert with an equivalent level, and in an equivalent area, of expertise, or other third-party evidence that could or should warrant Dr M’s evidence to be qualified to any significant degree, I should be taken to prefer and to accept Dr M’s expert evidence rather than that of Mr Tobey whenever there is any relevant disagreement between them.
[50] Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; 85 ALJR 694.
Mr Tobey’s General Evidence:An area in which there was some slightly blurred evidence from Mr Tobey concerned Ms F. It will be recalled from what has already been said that she is [Y]’s paternal Grandmother, [Y] being [X]’s sister. Ms F, as it were, stepped into the breach when Ms Rezek was hospitalised in May 2010. For quite some months, [X] lived regularly with the [F] family (for five nights out of 14), while he lived with his Father the other nights.
In the course of his cross-examination in relation to his insight into [X]’s needs and ongoing development, Mr Tobey was asked questions arising out of Dr M's Report, where he recorded that Mr Tobey did not support [X] spending time with the [F]s. He confirmed that he said to Dr M that the [F]s were not good people, that they were marginal people in [X]’s life, and that they would, in effect, side with Ms Rezek and facilitate her time with [X], as well as continue to propagate lies about Mr Tobey’s [alleged] misdemeanours.[51] He also confirmed that he was generally very critical of the [F]s.[52]
[51] T 67.
[52] T 69.
Yet he also acknowledged that [X] has a warm relationship with the [F]s.[53]
[53] T 68.
In my view, the inconsistency of his position in relation to the [F]s and their general significance in [X]’s life, particularly over the past year or so, is clear. It is, unfortunately, another example of his lack of insight into [X]’s needs.
Mr Tobey was asked whether he agreed with the assessment of Ms H in 2009, and with Dr M in 2011, that [X]’s anxiety and problems are likely to have a myriad of causes, rather than Ms Rezek’s mental health and the deterioration of it in May 2010. He rejected those assessments.[54] While he readily accepted that he and Ms Rezek were engaged in high conflict, he did not agree that it impacted on [X], essentially because he (Mr Tobey) did not bring that conflict before his son.[55]
[54] T 72–74. The relevant part of Ms H's Report is at para.133.
[55] T 73-74.
Respectfully, while I understand the point Mr Tobey sought to make, in my view, the basic assessments of Ms H and Dr M regarding [X]’s anxiety and other problems having a myriad of causes, included in which must be the conflict between his parents, must be accepted.
Another matter of significance was Mr Tobey’s evidence that [X] always spoke truthfully about things and events when in his care, but he would not accept that [X] spoke similarly when in his Mother’s care. He accepted, however, albeit it seemed to me with some diffidence, that children have been known to tell each parent what that parent wants to hear.[56]
[56] Generally, see T 74 & 75. See also T 129.
In this section of his evidence, there was an extended discussion with Mr Tobey about certain of his orders. He confirmed that he sought sole parental responsibility. He did so, he said, because it would ensure that there would be discussion between the parties, which he would facilitate, whereas if sole parental responsibility was given to
Ms Rezek, in his view, this would result in him being excluded from [X]’s life.[57] This was so notwithstanding that Mr Tobey confirmed that he did not advise Ms Rezek that he had lodged a formal complaint with the ACT Human Rights Commission against Dr C, who had been involved, among other things, in counselling for [X].[58]
[57] T 74 – 78.
[58] See T 94 – 95 & 155. Dr C's Report, dated 6th June 2008, is annexed to Dr C’s affidavit, filed 13th August 2009. The Report became Exhibit A3.
In answer to a question from the Bench, Mr Tobey confirmed his view that Ms Rezek has deliberately hurt, injured or otherwise mistreated [X].[59]
[59] T 83.
Mr Tobey accepted that the ongoing litigation is a stress for Ms Rezek, and not unreasonably, that it is an on-going stress for both parties. He also conceded that the appeal from orders made by me last September, and which was dismissed by Coleman J, was futile (as found by his Honour) and that it may have amounted to an abuse of process.[60] He also confirmed that, from his perspective, Ms Rezek’s mental health and general well-being was/is better this year than last.[61]
[60] T 90 – 92.
[61] T 93.
Notwithstanding all of the above, quite unsolicited, and in my view genuinely, Mr Tobey commented that Ms Rezek’s daughter, [Y] “turned out to be a lovely child.” Although it may be taken to be something of a ‘back-handed’ compliment, I took this to be an acknowledgement by Mr Tobey of Ms Rezek’s parenting skills and capability. Indeed, he said that she (Ms Rezek) was a “good parent”.[62]
[62] T 96.
In answer to questions from Counsel for the ICL, Mr Tobey confirmed that the historical reality was that equal shared parental responsibility, which had been ordered in 2009, had not worked well.[63]
[63] See the wider discussion at T 100 – 103.
Mr Tobey also agreed that he had not provided any financial assistance to the [F]s, notwithstanding that [X] was living with them for not insignificant periods of time.[64]
[64] T 111 – 112.
And, notwithstanding the history of the contest, Mr Tobey maintained that there remained a kernel of goodwill between the parties.[65] If that be the case, methinks that it would be a very small kernel indeed.
[65] T 119.
One final matter should be noted from Mr Tobey’s cross-examination. After two days of cross-examination, and before his re-examination, Mr Tobey was given some “homework” by me. This was to consider overnight what he might be able to suggest that would improve the parenting relationship with Ms Rezek.[66] Put shortly, his response was that he went to see Dr S, who (quite properly) indicated that the matter needed to be removed from litigation. Mr Tobey said that Dr S had suggested that a mediator, such as Ms H, be engaged with a view to having her mediate any difficulties between [X]’s parents.[67]
[66] See T 168 - 69.
[67] See T 185 ff.
For my part, there are three things to say about this evidence.
First, Mr Tobey is to be commended for seeking out the professional advice of Dr S.
Secondly, in my view, it is significant that it was thought necessary to seek out professional advice. This is to say that it was perceived as necessary by Mr Tobey to seek such advice rather then being able to work out a solution on his own. This should not be taken as an exercise in hyper-criticism. Rather, it highlights that the intuitive insight (among other things) in relation to parenting in this matter is not something that comes naturally to Mr Tobey, in all respects. His obvious and significant gifts do not extend to all aspects of the parental relationship with Ms Rezek. As I note below, in my view, she possesses a much greater natural sensitivity to [X]’s needs.
Thirdly, the proposal of a mediator to deal with any on-going difficulties between the parents, while having some attraction in some limited respects, in my view, risks keeping open a forum for confrontation, disagreement and adversarial contest. In my view, the best course for [X] is to minimise as far as possible any avenue for disputation between the parties, including the provision of any forum, especially an on-going one.
Finally, in answer to questions from Counsel for the ICL, Mr Tobey agreed, with some modest qualification, that the parenting orders sought by Ms Rezek were rather close or similar to those that had been agreed between the parties in 2009. He agreed that, while they were not his preferred orders, nonetheless, he entered them, after taking legal advice, by consent.[68]
[68] T 100 – 101.
Property: There was/is no dispute that the relationship between the parties was of modest duration, from 2003 until 2007. And Counsel for Ms Rezek helpfully confirmed that her client’s case was basically confined to factors under s.75(2) of the Act.[69]
[69] See T 340.
Mr Tobey confirmed that he would agree to a split of his superannuation, but would not agree to any cash adjustment to
Ms Rezek.[70]
[70] T 26. Earlier, at T 20, Mr Tobey's Counsel had confirmed that he would agree to a superannuation split of 50%, referable to the period of the relationship.
This evidence was later qualified by a Minute of Orders proposed by Mr Tobey that was filed on 3rd June 2011. According to those orders, Mr Tobey proposed a superannuation split of $98,068 in favour of
Ms Rezek, a cash payment to her of $50,000 within 60 days of the date of the orders, and a periodic payment of $400.00 per week for two years.
According to Ms Rezek’s Minute of Orders filed on 7th September 2011, the parties were agreed at least in relation to the superannuation split (literally give or take $1), and in the event that Ms Rezek was not able to be employed full time, the order for spousal maintenance of $400 per week was also essentially agreed, save that Mr Tobey would have it that that sum would be paid for a maximum of two years;
Ms Rezek would not have it so confined. Given that she is now working full time, it is (and hopefully will be) a moot point or issue.
He confirmed that he had paid no child support since May 2010.
In August 2010, FM Brewster made orders, among others, restraining Mr Tobey from disposing of any proceeds of sale of the former residence of the parties, and from further encumbering the property of the parties. Notwithstanding those orders, Mr Tobey applied the equity in that former residence (“the [K] property”), of approximately $450,000, to the purchase of another residence in [Q] in April 2010 (“the [Q] property”).[71] In relation to that property, which he purchased for $1,080,000.00, there is a re-draw facility of $150,000.
[71] A copy of the front page of the Contract of Sale for the [Q] property became Exhibit H.
In the circumstances put to him by Counsel for Ms Rezek regarding the purchase of the [Q] property just outlined, Mr Tobey confirmed that he had (a) applied all of the equity from the [K] property, including that to which Ms Rezek could properly be considered as having a claim, and (b) he had further encumbered the property by virtue of the re-draw facility.[72]
[72] See T 49 ff.
Another issue canvassed, but in the result, unlikely to be of any major moment, concerned an allegation of “waste” by Mr Tobey against
Ms Rezek in relation to the [K] property. The long and short of this aspect, as alleged by Mr Tobey, was that during the occupancy of the property by Ms Rezek, post-separation, the property was either run down and or damaged such that it required significant repairs to be undertaken by Mr Tobey.
In the result, I allowed the tender of two valuations on behalf of
Ms Rezek, which went to the value and condition of the property. Those valuations became Exhibits E1 and E2. Without doubting that Mr Tobey carried out various kinds of maintenance on the property, having regard to the detail in those valuations, I do not consider that there is any basis upon which a ‘waste’ argument can be sustained.[73]
[73] See further the discussion at T 85 – 89.
An unfortunate further complication in the property proceedings is the significant lack of attention to defining the parameters of the property pool. For example, there is a schedule of assets attached to Mr Tobey’s then Counsel’s Case Outline, filed on 20th May 2011. That schedule includes the [K] property, which was purchased in July 2002 by
Mr Tobey for $560,000 and sold in August 2010 for $875,000. Given its date of sale, it is not immediately clear why it was included. Likewise, why Mr Tobey’s more recently purchased property in [Q] was not included was also not explained.
According to the Schedule attached to Counsel’s Case Outline,
Mr Tobey’s assets totalled $1,192,456. It was further contended, according to that Schedule, that the net assets of Mr Tobey were $640,265, comprised of $354,547 in non-superannuation assets, and $285,718 in superannuation assets.
In the light of her Counsel’s concession to which I have earlier referred, there was no contention raised by Ms Rezek that she had made any significant financial contribution to the relationship.
I deal with the brief submissions of the parties in relation to property at the conclusion of these reasons.
Ms Rezek
Parenting
: Mr Tobey was in the witness box for two days plus;
Ms Rezek was engaged for a rather similar time. Fortunately, I can be much briefer with Ms Rezek’s evidence because, to a significant degree, it can be done by something of a cross-check and or comparison with the extensive evidence of Mr Tobey.
Two things might usefully be observed at the outset in relation to
Ms Rezek’s evidence. First, her evidence followed, in my view, something of a pattern. By this I mean that almost without exception, her evidence was that she wished [X] to have a meaningful relationship (and to spend regular time) with his Father, Mr Tobey, but that extended periods of time were not, at this stage and for the foreseeable future, in [X]’s best interests.[74] Rather, extended periods of time with his Father (i.e. essentially more than two days consecutively), in
Ms Rezek’s view, has a negative impact on [X]. She confirmed, however, that the last six months of [X]’s regular, but attenuated, time with his Father had been fantastic for all concerned.[75] She also confirmed that, by and large, handovers at school worked well.[76]
[74] Among other places, see T 200, 214 & 268.
[75] See T 234 & 243 and Transcript (27th May 2011) pp.5-7
[76] T 262.
Indeed, Ms Rezek’s evidence, which I accept and which is supported in large measure, in my view, by the expert evidence of Dr M, is that by having smaller, regular time with his Father, [X]’s time with Mr Tobey is actually better and richer. She says that, among other things,
Mr Tobey has difficulty ‘handling’ too much time with [X].[77] Ms Rezek contends that Mr Tobey does not, and is not able to, empathise, which is a significant difficulty, in her view, in her dealings with Mr Tobey, and in relation to his parenting capacity for [X]’s best interests.[78]
[77] T 265.
[78] T 216.
Ms Rezek confirmed that, subject to the expert evidence/advice of
Dr M, she would be content for [X]’s time with his Father to increase somewhat.[79]
[79] T 235 & 243.
Secondly, I confess to have been almost surprised by Ms Rezek’s evidence. I say this because, in the light of her extended hospitalisation last year, I had expected her to be a somewhat frail, perhaps fragile and exhausted Mother.[80] Quite to the contrary, I was taken by her recovery (to which Dr M formally attested, as did her treating health care professionals), her steely resolve in relation to [X]’s best interests, and the clarity of her insight and exposition. This should not be taken as any slight to Mr Tobey, who was just as steely in his resolve, and equally clear in the articulation of his position, albeit that he was given to proffering significant submission or justification of many incidents. In my view, however, the clearest distinction between the two parties is the much greater insight into [X]’s needs that Ms Rezek possesses. While Mr Tobey, as I have said, patently has [X]’s best interests at heart, and just as clearly has many gifts, in my view, he does not possess the quality and detail of parenting and relationship insight possessed by Ms Rezek. Other issues of significance and difference have been noted, as are others below.
[80]
Dr M also confirmed that he had formed the view that Mr Tobey had difficulty in accepting any other person’s view, except his own, including even how Dr M conducted the interviews for the purposes of preparing his report.[103]
[103] Transcript (7th September 2011) p.58.
Other issues traversed with Dr M by Counsel for Ms Rezek confirmed Dr M’s view that Mr Tobey tended to minimise the history and the “narrative” of events surrounding his anger in his relationships with
Ms O and with Ms Rezek, and that in certain respects, he had lacked a certain insight into [X]’s school readiness.[104]
[104] Generally, see Transcript (7th September 2011) pp.58-61.
Dr M confirmed that it would be essential for Ms Rezek to remain as stress-free (notably from litigation) as possible to enable her to parent [X] most effectively, and also as free as possible from “interference” from Mr Tobey.[105]
[105] Transcript (7th September 2011) p.68. I should note here, at least, that Ms Rezek deposed (and it was not seriously challenged) that prior to her hospitalisation in 2010, she had not had an episode of mental ill health for 13 years. See her trial affidavit at para.124.
An important part of Dr M’s cross-examination by Counsel for the ICL related to his view that Ms Rezek was at some risk or heightened vulnerability concerning her mental health having suffered the “episode” that led to her hospitalisation in 2010.[106]
[106] See Transcript (7th September 2011) p.75.
Costs of Dr M: In addition to his evidence and spending the better part of one day in the witness box being cross-examined by both parties and the ICL, there was another issue that concerned Dr M. That issue was the responsibility for his fees, and in particular, the costs of his personal attendance at Court at the resumed hearing in September, and his cancellation fee for being booked but then cancelled for the hearing in May 2011. Mr Tobey sought that those costs be shared between the parties and the ICL.
Most conveniently this application can begin with the fact that part of this issue was dealt with at a directions hearing on 5th May 2011. On that occasion, Mr Tobey’s solicitor said that Dr M would be required for the May hearing dates, and that if necessary, he would issue a subpoena to ensure his personal attendance. When this was put, the ICL confirmed, obviously in open Court, that if that occurred, it would be at Mr Tobey’s cost. His solicitor simply stated: “I know. I am aware of it.”[107] Indeed, the formal orders made on 5th May refer specifically to “[t]he costs of the expert witness Dr M to give evidence in person at the hearing are to be paid by the Applicant.”
[107] See Transcript (5th May 2011) pp.5 & 6.
Then, at another directions hearing shortly before the trial, on 17th May, the ICL confirmed Dr M’s availability and that arrangements for payment had been confirmed with Mr Tobey’s solicitor.[108]
[108] See Transcript (17th May 2011) p.8.
Also on 17th May, there was discussion about whether Dr M would be “reached” on the only day that he had indicated he would be available, being the Wednesday in the middle of the trial week, in the light of the expected lengthy cross-examination of the parties. It was confirmed that he would be ‘scheduled’ to be available for cross-examination on the Wednesday of the trial week. Indeed, there is a “notation” to the orders made on 17th May that confirm Dr M’s attendance on 25th May at 10am.
Surprisingly in the light of the above matters, at the commencement of the second day of the trial Counsel for Mr Tobey suggested that the parties were not consulted when Dr M was ‘scheduled’ to give evidence on the Wednesday during the trial.[109] As I indicated at the time, one should have been able to assume that what had been discussed at the directions hearing would have been conveyed to Counsel. Seemingly, that did not occur.
[109] See Transcript (24th May 2011) p.81.
Later on the second day of the trial, when it was obvious that there would be little, if any, opportunity to cross-examine the Mother before Dr M gave evidence, there was an extended discussion with all Counsel about options in relation to his evidence. This occurred, among other things, in circumstances where Counsel for Mr Tobey confirmed that the “history of [Ms Rezek’s] mental illness will be an issue”, and also where it was confirmed that Dr M had not previously been provided with that history because Mr Tobey had objected to it being made available to him.[110]
[110] See Transcript (24th May 2011) pp.140-141.
After the Court expressed extreme disquiet about the state of affairs, and not being able to rely upon what was advised by Mr Tobey’s solicitors at the directions hearing only the week before the trial, Counsel for Mr Tobey, quite fairly said: “Can I apologise on behalf of those representing the Father …. I apologise for the abysmal situation that we’re now in and, if it’s the fault of those representing the Father, then they should assume responsibility for such.”[111]
[111] Transcript (24th May 2011) p.141.
All of the discussion to which I referred took place with only a junior solicitor instructing Counsel on behalf of Mr Tobey. I granted Counsel’s request to consider the matter, including the cost implications, with the solicitor who had carriage of the matter. Why and how the solicitor who had carriage of the matter, and who had been at all of the directions hearings, was not in attendance, while all other senior solicitors attended the trial and instructed their respective Counsel, was never explained. At the very least, it made Mr Tobey's Counsel obtaining instructions very difficult.
Formally, the costs of Dr M’s cancellation were reserved on that occasion.[112]
[112] Transcript (24th May 2011) pp.143 & 144.
I should also note, more generally, that neither Ms Rezek, nor the ICL, required Dr M to attend Court personally for the purposes of cross-examination. That personal attendance was required only by Mr Tobey.
In the light of the all the circumstances outlined above, Mr Tobey’s application for the cancellation and personal attendance costs of Dr M to be shared equally between the parties and the ICL must be dismissed.
I turn to relevant jurisprudence and the legislative pathway.
G. Legal Principle
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle and the relevant ‘statutory pathway’ in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[113]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[113] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments have been subsequently endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[114]
[114] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, further Full Courts in Collu & Rinaldo [2010] FamCAFC 53 at [335], and again in Sigley v Evor (2011) 44 Fam LR 439 at [131] – [136], have similarly endorsed Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
H. Negotiating the Legislative Pathway
In the light of the consideration of the evidence canvassed in these reasons, and following sequentially (but not necessarily with specific reference to) the order of paragraphs in s.60CC(3), I note the following in negotiating the “legislative pathway.”
In proceeding first to consider s.60CC(3), I am conscious of the remarks of the Full Court in Collu & Rinaldo, at [140] and later at [334] – [335], in relation to (i) the consideration of the additional factors in s.60CC(3) before considering the presumption in s.61DA, and (ii) the overlap in certain parts of the primary, and the additional, considerations in s.60CC(2) and s.60CC(3). It might also be observed that there is the potential overlap between parts of s.60CC and the objects and principles in s.60B, not least in relation to the Court’s responsibility to determine the nature of a child’s relationship with his or her parents, and whether it is “meaningful”, and what orders should be made to ensure that the child, to the maximum extent possible, has a meaningful (rather than necessarily an “optimal”) relationship with both parents.[115] The proper consideration of all relevant factors is, of course, intended to ensure that the orders made are in [X]’s best interests, pursuant to s.60CA.
[115] The distinction between a child having a meaningful, rather than an optimal, relationship has a growing and Full Court endorsed pedigree. It begins with comments by Dessau J in M v S (2006) 37 Fam LR 32 at [38] & [39], which were approved by Kay J in Godfrey v Sanders [2007] FamCA 102 at [33] – [36], and the general overview provided by the Full Court in Sigley v Evor (2011) 44 Fam LR 439 at [134] – [136]. It is also important to record the Full Court’s adoption in Sigley, at [136], of the distinctions made in the earlier Full Court decision in Champness v Hanson (2009) FLC ¶93-407, which included, at [191], that the expression “meaningful relationship” referred to a legal construct rather than a psychological one which is to be determined by the Court rather than an expert.
Given [X]’s age, there are no relevant views to consider.
I have no doubt that, notwithstanding the years of litigation and the bitterly fractious relationship between them, [X] has a good and loving relationship with both of his parents. There is also no doubt of [X]’s very close relationship with his sister, [Y], and the significance of his relationship with Ms F in particular.
The considerations contemplated by sub-paragraphs (c) and (i) of s.60CC(3) were the subject of most of the evidence at trial. I have commented sufficiently already on the capacities and limitations I perceive in particular in Mr Tobey’s parenting skills and his relationship with Ms Rezek as to obviate the need to traverse these matters further. In short, in my view, Ms Rezek has the greater capacity to promote [X]’s relationship with his Father; she has the greater parenting skills, and the better disposition to the responsibilities of parenthood than does Mr Tobey.
In my view, the orders of the Court will have little if any impact on [X]’s circumstances. Indeed, they are designed, and have the specific object, to improve the quality of his time with his Father.
On the evidence, there are no issues regarding practical difficulty and expense in relation to [X] spending time with his Father. There are obvious communication difficulties between the parties. The orders address the issues of communication and related matters by ensuring that contact of any and all kinds between the parties is confined to the absolute minimum.
In the light of the evidence, and in the light of the orders made pursuant to these reasons, there are no issues regarding either parent being able to provide for any and all of [X]’s needs. The same general comment applies in relation to the matters contemplated by s.60CC(3)(g).
In relation to family violence, as per s.60CC(3)(j) & (k), the evidence is clear; it is set out earlier and regularly throughout these reasons. This includes Dr M’s characterisation of Mr Tobey’s tendency to understate the nature and extent of his outbursts of anger, and their impact on others, including [X] and Ms Rezek. I need not rehearse that evidence. The issue of Mr Tobey’s anger, fortunately not frequently visited upon others, remains nonetheless a significant and concerning issue. The orders reflect this concern, especially in exercising the Court’s protective responsibilities to [X], but no less so to his parents. I hope that, over time, and with this litigation finally disposed of, all parties can attend to the necessary personal and communal repair of frayed and discordant lives as required.
In my view, the orders of the Court are those least likely to result in further litigation.
I should also record, by reference to s.60CC(4) and (4A), that the history of acrid communication and discord in the relationship between the parents, and notably Mr Tobey’s breaking into Ms Rezek’s residence, all confirm the risks to [X] if there is any requirement for the parents to communicate regularly.
In relation to parental responsibility, because of the utterly ruptured parental relationship, the only appropriate order that is, in my view, in [X]’s best interests is that Ms Rezek have sole parental responsibility. As well, the presumption of equal shared parental responsibility in s.61DA of the Act, in any event, is readily rebutted because of the nature and history of family violence to which abundant reference has been made.
Because of there being an order for sole parental responsibility, it is unnecessary to consider the terms of s.65DAA.
For all of the above reasons, in my view, subject to the variations noted below, the orders as sought by the ICL (other than in relation to parental responsibility) are in [X]’s best interests. The variations to the ICL’s orders to which I have just referred are to be taken from the Mother’s “orders sought”, as follows, and which, therefore, form part of the orders of the Court:
(a) the last two sentences in the Mother’s proposed order 9;
(b) orders 10, 12, 13 & 14.
Property Orders
I have already noted the limited evidence before the Court in relation to property, but, at the same time, the limited scope of the dispute in relation to it, not least because of the concession by Ms Rezek that her orders sought essentially related only to s.75(2) factors and her disavowal of any relevant financial contribution during the modest-length relationship.
Again, without being unduly critical, the attention to detail and basic information concerning Mr Tobey’s property made the determination of what is “just and equitable” for the purposes of s.79 of the Act, rather difficult, indeed significantly more difficult than it otherwise should have been. For example, I have already noted that the purchase of his [Q] property was not included in his list of assets. This was a significant omission. And notwithstanding a recent request to both parties for electronic and updated copies of their respective tables of assets and liabilities, nothing has been forthcoming from Mr Tobey.
I set out below the latest version of the respective orders sought by each of the parties.
Mr Tobey sought property orders as follows:
1. That the orders below have effect from the operative time.
(a) That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to or behalf of Mr Tobey from his interest in [P] Superannuation (the [P]). Ms Rezek is entitled to a base amount of ninety-eight thousand and sixty-eight dollars ($98,068.00) and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;
(b) That, having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of the superannuation fund;
(c) That the operative time for this order is four (4) business days after the date of these orders on the trustee of the superannuation fund.
2. That the Father pay to the Mother the sum of $50,000.00 within 60 days of the date of these orders.
3. That the Father pay to the Mother the sum of $41,600.00 by way of periodic payment of $400 per week for a period of two years.
4. That unless otherwise set out in these Orders, the parties have the sole right, title and interest in any other property, or superannuation entitlements which are at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any person liabilities.
Ms Rezek sought property orders as follows:
1. That within 90 days the Applicant pay to Legal Aid ACT for payment out to the Respondent the sum of $200,000.00
2. That within 30 days the Applicant deliver to the Respondent the following household items:
(a) The 8 dining chairs
(b) The hand-woven wool rug
3. That 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 $98,067.92 and there shall be a corresponding reduction in the amount Mr Tobey would be entitled to receive but for these orders.
4. That the operative time for Order 3 is four business days after service of these orders on the Trustee.
5. That the parties do all things necessary to transfer the Australian Scholarship Trust (ASG) trust to the Respondent.
6. That at any time until the child turns 18 years, if the Respondent is unable to work full-time due to her health the Applicant shall pay to the Respondent the sum of $400 per week by way of spouse maintenance during each week the Respondent is unable to work full time.
7. That the Applicant pay the costs of, and incidental to, these proceedings.
I note that the parties are agreed that there should be an order that provides for a split of Mr Tobey’s superannuation with a base amount of $98,068.
I also note that Mr Tobey proposes that he pay to Ms Rezek a sum of $50,000 within 60 days of these orders, while Ms Rezek seeks a payment from Mr Tobey of $200,000.
In terms of the asset pool, I simply include the combined following table of assets and liabilities of the respective parties:
| Assets/Liabilities | Mother | Father |
| Assets | ||
| Proceeds from sale of [K]: Sale price $875K Mortgage $451K Sale costs allow $24K | Nil | $400,000 (used to purchase [Q] home so not included in total assets) |
| Significant Chattels | Nil | $28,500 |
| Household contents | $4,200 | $20,000 |
| Superannuation | $12,664 | $289,222 (referable to marriage is accepted as $184,121) |
| House in [Q] Value $1,080,000 Mortgage $714459 Equity $365,541 | $365,541 (equity) | |
| Bank accounts | $14,298 | |
| Motor vehicles | $800 | $22,500 |
| $17,664 | $740,061 | |
| Liabilities | ||
| HECS | $15,000 | |
| Legal fees | $33,000 | |
| Loans | $29,300 | |
| Line of Credit | $8990 | |
| Credit card | $5487 | |
| Legal fees | $68,000 | |
| Mortgage | Accounted for in assets list | |
| $77,300 | $82,477 | |
| $(59,636) | $657,584 |
Because of the lack of information or updated material filed by
Mr Tobey, I will take the table of assets and liabilities as provided on behalf of Ms Rezek as sufficient for the purposes of these reasons. I note that the difference between the net assets set out in Mr Tobey’s original (and only) table, which was attached to his Counsel’s filed on 20th May, and that which has been recently updated by Ms Rezek’s solicitor, is only some $17,319.Thus, the net asset pool shall be taken to be $657,584, which sum, of course, includes both superannuation ($301,886) and non-superannuation assets.
Mr Tobey is 51 years of age, in good health, and currently earns an annual income in the order of $350,000. Mr Tobey has no children other than [X]. Ms Rezek is 40 years old and recently employed in the public service where she earns an annual income of $70,528. In addition to [X], Ms Rezek has an older daughter, 14 year old [Y], from a previous relationship.
As submitted on her behalf, Ms Rezek contends that her orders sought reflect (i) her non-financial contributions during the relationship of approximately five years (2002 – 2007); (ii) the increase in value of the [K] property, due to market forces, during the relationship;[116] and (iii) s.75(2) factors, specifically s.75(2)(b) (income, property and financial resources of each of the parties), (c) (care of a child under 18 years of age), (g) (reasonable standard of living), (j) (Mother’s contribution to the income, earning capacity, and financial resources of the other party), and (na) (child support considerations, past, present and future).
[116] The property was purchased by Mr Tobey in 2002 for $560,000 and sold in 2011 for $875,000. The equity in the property prior to sale was $424,000.
Mr Tobey filed written submissions in relation to property on 16th September. Respectfully, quite a number of his submissions were either (a) not supported by the evidence at trial (e.g. in relation to the purpose of the tender of the valuations of the [K] property), (b) inappropriate because they related to settlement negotiations, albeit some time ago (which should not have been put before the Court), or (c) not sustainable because, for example, his claim of “negative contribution” by the Mother is not a legally recognisable principle.
Notwithstanding the above difficulties with his submissions (again, not said critically), it was not disputed that Ms Rezek had the use and occupation (and for [X]’s benefit also) of the [K] property, between October 2007 (the date of separation) and the date the property was vacated in March 2010. For all of that period the mortgage was paid by Mr Tobey.
It was also not disputed that Mr Tobey paid for the other outgoings in relation to the [K] property, as well as continued to make the lease payments on a vehicle for Ms Rezek, until 2009. Mr Tobey thereafter provided a sum of $5000 to Ms Rezek for the purchase of a substitute car.
For my part, having regard to the limited evidence available to the Court, I note the following in relation to each of the s.75(2) factors relied upon by Ms Rezek.
As to s.75(2)(b), there is no doubt, and could be no doubt, that
Mr Tobey’s income, property and financial resources exceed those available to Ms Rezek to a very significant degree.As to s.75(2)(c), there is no doubt that, under the final orders of the Court made in these proceedings, Ms Rezek will have the greater level of care for [X], compared to the care that will fall to Mr Tobey, and in all likelihood until he turns 18 in approximately 12 years’ time.
As to s.75(2)(g), because of the greater income and financial resources available to Mr Tobey, some favourable consideration needs to be taken into account in Ms Rezek’s favour in relation to the ‘standard of living’ requirements of this sub-paragraph.
As to s.75(2)(j) regarding the contribution of Ms Rezek to Mr Tobey’s income earning capacity during the relationship I accept that (i)
Ms Rezek was [X]’s primary carer prior to him commencing school, but without denying Mr Tobey’s somewhat more limited contributions in this regard, and (ii) because of the nature and flexibility of his work commitments, which seemed not to be disputed, I have some difficulty in allowing much in the way of an adjustment in Ms Rezek’s favour under this sub-paragraph. Mr Tobey’s income was always, and is, going to be significantly greater than Ms Rezek’s, virtually regardless of the degree to which Ms Rezek was or was not ‘on the scene.’As to s.75(2)(na), annexures D and E to Ms Rezek’s trial affidavit confirm that almost $14,000 was credited to child support between 1 January 2007 and 10 March 2010. No child support has been paid by Mr Tobey since March 2010.
Finally, although noted earlier in these reasons, it is as well to recall here that, contrary to orders of FM Brewster in August 2010, Mr Tobey effectively appropriated the equity in the [K] property that properly belonged to Ms Rezek, and applied it to the purchase of his current residence. Thus, he has had the benefit of the misappropriated and misapplied equity of Ms Rezek since the purchase of the [Q] property in April 2010.[117]
[117] According to the Contract for Sale (Exhibit H), completion of the purchase took place on (or before) 15th June 2010.
Paragraph 10 of Mr Tobey’s written submissions of September 2011 outline what he says is the correct position in relation to child support, including non-agency payments, for example, in relation to the mortgage payments on the [K] property. During the trial, Mr Tobey confirmed that he had no objection to a new assessment being paid in relation to child support. This had not occurred simply because no such request had been made. For my part, an assessment by the Child Support Agency, should be made at the earliest possible time following the publication of these orders.
Accepting that the property case was conducted by Ms Rezek essentially on the basis of s.75(2) factors, and in the light of the comments already made, it remains for the Court to consider, in the light of the totality of the evidence (including its many short-comings), what orders are just and equitable.
For my part, a significant factor is the quite short duration of the relationship (5 years). So, too, is the very significant income difference between the parties. And, as already noted, Ms Rezek will have the greater level of care for [X], and for many years hence.
I note, again, that it has been agreed that there should be a superannuation split in Ms Rezek’s favour in the sum of $98,068. For the purposes of determining the just and equitable order to be made, having regard to the agreed superannuation split, the superannuation component of the asset pool should be excluded from the current deliberations and calculations. That being the case, the combined ‘super pool’ of $301,886 should be excluded from the total asset pool of $657,584, leaving a combined ‘non-super pool’ of $355,698.
In the light of the above considerations, but in particular the very significant income disparity between the parties, and that Ms Rezek will have the significantly greater care responsibilities for [X] for many years to come, a percentage split of the non-superannuation asset pool should be made in her favour of 35%. That distribution will result in a payment to Ms Rezek by Mr Tobey of $124,493. That sum should be paid within 60 days of these orders. In my view, this distribution is just and equitable in all the circumstances of this litigation.
The Court so orders.
I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 14 December 2011
To speak generally, the “tendency evidence” related, among other things, to allegations that
Mr Tobey had/has a history of swearing and ill temper.
As I have mentioned previously, Ms Rezek also suffers, and has done so for quite some time, from a bi-polar condition. She is on medication for this. She came off it – under medical guidance – when she and Mr Tobey had decided to conceive [X]. The medical and other evidence before the Court confirmed that stress and fatigue are significant adverse factors for Ms Rezek’s health – mental and otherwise. For example, she confirmed that the large number and ongoing court applications brought by Mr Tobey has been a significant and constant stress factor since the parties’ separation. Doubtless the ongoing litigation has been a stress factor for Mr Tobey also. One particular application that should perhaps be noted is that which Mr Tobey brought in October 2009 in which he sought to have
Ms Rezek (and [X]) vacate the residence which they formerly shared.
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